Friday, 23 May 1986

Seanad Eireann Debate
Vol. 112 No. 15

Page of 4

Atairgeadh an cheist: “Go léifear an Bille an Dara hUair.”

Question again proposed: “That the Bill be now read a Second Time.”

Mr. Fitzsimons:I am glad to get this opportunity to continue my contribution. In one sense, there is difficulty when a contribution is broken up by an Adjournment. I seem to have a propensity in this regard. On the discussion some time back when we debated the report on marital breakdown, this happened to me on two occasions. For that reason I hope the Chair will give me an opportunity to refer very briefly to some of the points that I raised in my hour's contribution last night, so that I will get oriented.

My contribution has no particular sequence or format. I am dealing with the different ideas as they come to mind. The stand I have taken is a very positive and a very caring one and is very necessary. I stated that my position on this was very clear. I expanded on it in this House some few years ago. It is on the record of the House. Very briefly, it is this: regarding marital breakdown I could not envisage any satisfactory solution which did not include divorce in certain limited and extreme circumstances. That is still my view. In the Bill before us there is the five-year failure period before divorce is considered; there is the undertaking and the commitment of the Government to follow-up with legislation which will take into consideration the special problems of women — we know that women are destined to play a very difficult role — and we are promised legislation which will take care of the children. Taking into consideration all these matters, many of [1705] which we will go into in greater detail at Committee Stage, this Bill meets the criteria that I laid down. Therefore, my approach is a positive one and I will be voting “yes”.

I find it somewhat uncomfortable to be, as it seems so far, the sole member among my colleagues who have taken this viewpoint. I respect the viewpoint of all the Members and, indeed, every individual with regard to this matter. I believe there is no sitting on the fence. We must come down one way or the other. Having regard to all these things and to the pain that will ensue because of this amendment, if it is carried, and the cost to the State as against costs at the present time, I could not be persuaded that my approach is the wrong one.

Once again I want to thank my party for giving me the opportunity to express my personal views. They are my own individual views. It is proper to leave the decision to the people and to give the people the opportunity to make a choice and to determine whether we will or will not have divorce.

As I said last night, my approach is a very simply one. I am leaving the legal points to the lawyers. In one sense, if somebody said my approach is too simple I would not object.

I said that in most cases the happiness that people seek in marriage is bought at a very great price. I was unable to put a costing on that but I looked at it from the other point of view, which is from the point of view of those who are not prepared to pay the price. In that category I included the alcoholic, who refused treatment — I have great sympathy for the alcoholic — I included the criminal, the gambler and people with some serious defect or neglect in other areas. These people, in my estimation, are not prepared to pay the price. Therefore, I feel that a spouse trapped in that situation should get the opportunity to opt out if he or she wishes.

Again, I look at this from a very selfish situation. I picture my own child, my own daughter in that situation, left perhaps by a husband who might never return, [1706] abused physically or mentally. Like any other parent, there is nothing I would not do for my children. According to the central doctrine of my faith, the Roman Catholic Church, that is, the doctrine of the Mystical Body of Christ, where we see in every individual the person of Christ, that is not an unreasonable stand to take.

When we say that marriage is for life — and I personally believe it is for life — that is my commitment — that is my faith — we are saying to people: “Do whatever you like; behave whatever way you want to. Your spouse must put up with you for life.” That is wrong, because if I engage somebody in my office I expect him or her to be punctual, I expect them to be concerned. I expect them to have a great interest in my work. In a situation of marriage, which is a lifelong commitment, it is extraordinary that there seem to be no rules of behaviour. Love seems to be the spark which sets it off but it is not necessary to maintain it. Life, we all know, is very difficult where there is love, and where love is diminished the problems are greater. I would not like to envisage what life is like in a marriage where that love turns to hate. We know that this marital problem is going to increase. There is no question about that, in spite of what people have said about providing resources to deal with the problems. Of course, these are necessary. They are promised in this Bill and in the memorandum that comes with it. I take that commitment seriously. I could not envisage any Government reneging on their responsibility in this regard. Therefore, I take that understanding in a bona fide situation. Just because my marriage is stable and just because my wife happens to be exemplary and has given me everything in life that is worthwhile and that in marriage I have everything I want, I do not see why I should condemn those who are in a broken marriage situation, and say that they did not try hard enough and that it is their own fault. I do not think I should set myself up as a judge. I do not do so.

Most people marry for a sexual relationship and in a broken marriage [1707] they are denied that relationship. My church forbids sexual intercourse outside marriage. We have a predominantly Catholic country, so I see a sad, human situation here. What I want to see is a pluralist State which acknowledges the freedom and rights of other religions and that these minority religions or people who belong to no religions would not be constrained by the beliefs of the majority religion, such as the Roman Catholic Church in this country. Divorce comes into that category here, because while divorce is not allowed under the laws of the Roman Catholic Church most of the other religions have the same commitment to marriage but allow divorce in situations where there is no hope of having a marriage mended.

Anybody who attended Mass this morning will have heard the Gospel on that issue of divorce where we are told that Our Lord, when he was asked about it, said that a wife who divorced her spouse and married again committed adultery and the husband who divorced his spouse and married again committed adultery. That is the clear teaching of the Catholic Church. That is my firm belief also. Catholics who remain loyal to their belief may not remarry after divorce. Catholics who are loyal to that belief may not use artificial contraceptives. I am not setting myself up as a judge in this matter. Each individual has a conscience to do as he considers right and proper. I can see situations where it would not be improper to avail of these facilities. In other countries where divorce has become available Catholics have made use of that facility to the same extent as anybody else. In this situation in this country it may well be the same. If it will be the same then, in effect, we are denying divorce facilities not only to the minority of religions and those of no religion, but also to those of the majority religion who would avail of that facility.

I have already mentioned the sadness which I feel when the Protestant churches throughout the country fall into ruin and are demolished. That is an irreparable loss from the religious and cultural point [1708] of view, and also that of society. My whole approach to those people would be to tell them that they have a place in our society, that while it is sad that their numbers seem to have dwindled they have a place in our society. Therefore, it is logical to say that they must have a special place in our Constitution, in our statutes and in our legal system so that they will not be inhibited by the ethos, views and commandments of the Catholic Church.

I went into the matter of tolerance and pluralism and gave references from a book by Desmond M. Clarke, which I regard as a masterful book on this subject and one which I have consulted quite often during debates in this House. Like all the other Members, I am sorry that we seem to have failed in transmitting our inherited values. Nevertheless, we have moved with the times in one sense. There may be some values, particularly the sexual values which applied in my youth, which would have a greater appeal to me. From many other points of view I would not like to see the hands of the clock turned back.

I mentioned the problem which children have when at school. They are taught religion and how to deal with the sixth and ninth commandments the way we were taught in that situation. Not alone was it wrong to act immorally but even immoral thoughts were forbidden. I am sure the teaching is the same now. It cannot have changed that much. On television programmes — some of them totally foreign to our culture — we see married men getting into bed with different women. This seems to debase the whole concept of the teaching of religion. A certain standard is taught at school and then when the children go home they see the very opposite, but in a more attractive, and appealing way and in a way in which young poeple are not able to resist. Therefore, there is terrible tension. I am not sure how it can be controlled. If, after seeing some of those programmes I were to give a lecture or talk to my children I am not sure it would counteract everything they had seen. I do not know how to deal with that, but I am sure there [1709] are people who could make meaningful suggestions in this area. I see this as a major problem for the next generations.

I have made it clear that I am not for divorce. I am for a meaningful marriage and a Christian way of life. I am for happiness. I am for everything that is beautiful in marriage. At the end of the day, in some cases, that ideal is not achievable. From that point of view when people ask me if I am for divorce, then the answer is” yes, I am for divorce in that situation”. I believe that marriage guidance is necessary. Courses must be very helpful. I should like to congratulate the Church, clergy, volunteers and everybody who act so unselfishly in this area and give their time and their talents.

Of course, I also believe that more than a short course before marriage is necessary, the whole upbringing of a person, the whole background. Anything that would be a hindrance in this respect as regards income, housing, or any area whatever, should be given great attention by the State. I mentioned Fr. Peyton and his campaign about the family that prays together, stays together. Surely that is the whole point of our exercise in dealing with the problem, to try to get families to stay together. This will be the important approach in the legislation which will be enacted subsequent to the passing of this Bill, if it does pass, to do everything possible to keep families together and to make them work. Love withers, and that is the source of the problem. Perhaps expectations are unrealistic and too high. People are not prepared to pay the price. In any event, the result is broken marriages.

I have the greatest respect for all other Churches as well as my own. I recall back in the very early fifties cycling into Kells weekly to a social science class which was organised by the very good priest, Fr. Crilly who has since died, God rest his soul. Indeed nearly all who took part in that class have since died. The classes were held in the Christian Brothers school. At that time Papal Encyclicals were new to me: Rerum Novarum, Quadragesimo Anno and all the others. We dealt with [1710] them in some detail. It was a most enjoyable time.

I recall that very good priest stating that, in the 2,000 years of Christianity, at times good, old fashioned, honest-to-God paganism had been a saving or an ameliorative force in society. Unfortunately, I never went into that in further detail to isolate the different periods when paganism had come up trumps and Christianity had failed to live up to expectations. But what I took from it was, and what stayed with me, is the fact that no Church or group has an exclusive right to virtue or morality.

Religion is simply a path to God. There are many paths. It is not for me to say which path is the best or the ideal one. I feel to some extent I am a committed Roman Catholic. I would like to put on the record that I recognise that fact. At that time the issue regarding the mother and child scheme had come up for debate. Indeed, in that respect I recall too that good priest explaining — and I hope I do not do him an injustice — the Church had no objection to looking after the welfare of mothers. What was at issue, obviously, was that the Church was afraid the State would take over what I might call the question of fertilisation, deciding how many children a mother could have in the interest of her own health. That seemed to be the problem at that time. It was an unfortunate issue which brought about the resignation of a very great man, Dr. Noel Browne. I was glad to hear him afterwards on a radio programme stating very courageously and very fairly that that Bill which he inherited was a Fianna Fáil Bill, and one which he inherited from a previous Fianna Fáil Government. I felt proud of that.

I know that some religious-minded — and there is nothing wrong with being religious-minded — may say, and I have heard them say, that divorce is legalised prostitution. Somebody said it is putting the cloak of respectability on adultery. This is a very emotional response. One may ask: why give someone who has broken up one family the opportunity to break up another? I am not convinced that is a fair question because we could [1711] all stand condemned in one way or another in aspects of our lives. Small issues determined whether we went in the right direction or the left.

I firmly believe that no individual is beyond reform, the criminal, the rapist, the murderer — anybody. That is the proper stand. From that point of view I could not accept that what we are doing is giving someone who has broken up one home the opportunity to break up another. I do not accept that. Inevitably, in some instances that will happen. The law will be abused. We know that. If divorce is a human right we should not negative it. It is the same with regard to cost to society and the pain. That extra cost to society and that pain which will be involved, perhaps not additionally — are other matters. Taking that into consideration I feel that, if divorce is a human right, it should be allowed and should be available. We have to ask ourselves: is it a civil right? If we feel it is, the answer is yes and all the other matters are peripheral, important and serious as they are.

Of all the EC countries — 12 at present — we are the only country that does not have divorce legislation. Some of those countries would be considered to be as Christian or as Catholic as this country — Italy, for example, Spain; Portugal and France. I am not sure how you would determine whether they are active Catholics or not. Perhaps as regards attendance at Mass, this country must be in the lead. But I am sure all these countries are as concerned about morals, virtue and society as we are. I am sure they are as concerned about the changing values and that they were as reluctant to introduce this legislation as we are. I would like to look at two countries, Italy and Spain, and briefly consider their divorce legislation. First of all with regard to Italy, the principal statutes are the laws of 1 December 1970 and 25 September 1975. These state:

Divorce may be granted where (1) the respondent is convicted of certain offences, or sentenced to certain periods of imprisonment, or acquitted [1712] of certain offences on the grounds of total unsoundness of mind or other specific reasons; (2) there is non-consummation of the marriage; (3) the respondent being a foreign national has obtained an annulment or dissolution abroad and has subsequently remarried; (4) where there has been a judicial separation or a consentual separation ratified by the court. The petition for divorce may be made after five years if there is mutual consent, six years if the respondent objects but the initial separation was by consent, or seven years where the respondent objects and the initial separation was on foot of a judicial separation caused by a fault of the petitioner. The court may refuse to ratify a separation agreement if not satisfied with the arrangements made for children's material or moral welfare. This obliges the parties to come up with an arrangement which will satisfy the court. The court must attempt to achieve a reconciliation of the parties. They will be heard first separately and then together. If the court forms the opinion that there is a possibility of a reconciliation it can delay the trial for up to a year. If the reconciliation is refused, however, the court must finally accept this.

Regarding Spain the position seems to be as follows:

Divorce was introduced by law No. 30/1981 of July 1981. Marriage may be dissolved where (1) there has been one year's separation from the date of bringing a petition for judicial separation jointly or by consent; (2) one year's separation from the bringing of a petition or counter petition for judicial separation; the grounds for judicial separation include (a) desertion, adultery, not if spouses separated by mutual consent or by the active spouse alleging adultery, injurious or vexatious conduct and any other serious or repeated breach of matrimonial duties; (b) any serious or repeated breach of duties towards children of the marriage or those of either spouse living in the family home; [1713] (c) conviction followed by imprisonment exceeding six years; (d) alcoholism, use of narcotics, or mental derangement whenever the interest of the other spouse or of the family demands the suspension of cohabitation; (e) there are also several distinct separation grounds; (3) two years separation since (a) the freely agreed actual separation of the spouses; (b) one of the spouses has been declared missing on the petition of the other spouse; (c) the actual separation of the spouses when the petitioner alleges that the other spouse had given him cause sufficient for judicial separation; (4) five years separation on the petition of either spouse; (5) conviction for an attempt on the life of the petitioner, his ancestors or descendants.

These give us something to compare with this Bill and the subsequent legislation. I am sure the Government have done that. I am sure in the legislation which will follow many of these matters will also be incorporated.

I realise that divorce will be no help as regards the problem of unstable marriages. This has been mentioned by others and has been conceded. I should like to quote Professor Mary McAleese on a motion that civil divorce should be available in Ireland reported in the Law Society Gazette, June 1979. I am quoting from page 98:

No one suggests that divorce solves the problem of unstable marriages. The only real answer to that lies in prevention through education and support. Nor can it heal the wounds caused by two warring spouses. It cannot replenish the wasted years or exorcise the damage, but it does permit a clean finish and a fresh start with, hopefully, lessons learned and experience gained. There is no guarantee of a happy ending, but divorce does at least hold out the possibility. Without it there remains the syndrome of breakdown, of frustrated people trapped in unsatisfactory relationships, of children soured by their experience at the hands of incompatible parents, of illegitimate [1714] children and illicit relationships which have their own form of inherent misery precisely because they cannot be legitimised.

Professor McAleese also refers to the increasing involvement of the State in casualty marriages and points out that these pieces of legislation did not create the problems. They were intended to deal with them. The same is true for divorce legislation. As Professor McAleese puts it, and I quote from page 95 of the same paper:

No matter how many times we repeat the assertion that divorce wrecks homes or damages lives, we cannot make it valid or true. In the words of Rheinstein in his treatise on American divorce: “The breakdown of marriage is an event in the realm of fact which is different from and regularly precede that event in the realm of law which is called divorce and which does no more than ascertain the fact that a marriage has broken down and restores freedom to the parties.

I should like to conclude my references to this Law Society Gazette and the paper by Professor McAleese by quoting a section regarding reasons for marriage breakdown:

But if then divorce legislation is not a cause of marital breakdown, but instead an expression of already changed and changing attitudes to marriage, what then are the effective causes of marital disharmony and eventual breakdown? The answer to this operates at two levels. One identifies general factors which have had the effect of subtly changing our traditional concept of marriage, of relationships inside and outside marriage, of male-female roles in life and marriage etc. At this level our changing views and expectations are themselves the dynamic force in the changing nature of the institution of marriage. Marriage is preceived not as a set of given and immutable constants but as a growing and developing idealisation exposed to and vulnerable to change. The second [1715] level identifies individualised factors which, if present in a particular marriage, may mitigate its viability. At the general level the greatest contribution is made by the increasingly complex nature of modern life itself. Our sophisticated consumerised world creates its own tensions and pressures and all too often the home is used as a forum in which such tensions are relieved in an inarticulate and violent way.

Simultaneously our expectations of life and marriage are changing radically in step with the social and economic emancipation of women which, while far from complete as yet, is nonetheless real in its consequences. There is a growing realisation among women that there exists alternatives to the traditional subservient doormat style existence of former days and, just as our prospects from life and marriage have widened and been enhanced so, too, our tolerance of unacceptable behaviour inside marriage has dropped as a consequence. There have, too, been real changes in attitudes to contraception, family planning, working wives, sex inside and outside marriage and each of these factors, along with many others, have almost imperceptibly affected and moulded the overweaning attitude to marriage.

Incidental to that there is the reality for many of our young people that the sole source of information about sex, love or marriage is gleaned from cheap magazines who traffic in the belief that sexual licence is the hallmark of freedom and that romance is a synonym for love. But where are the official attempts to contravert these fallacies which are more insidious to marriage than any amount of divorce laws? Where are the educational programmes designed to direct the young to mature and unselfish sexual responses, to an intellectual realisation of the need for loving, caring, forgiving and communicating as fundamentals in marriage? A response, instead of being open, confident and positive, has on the whole been unerringly negative and [1716] failures highlighted in the illegitimacies, abortions and marital breakdown which increasingly form a normal part of everyday life.

It may very well be true that there is nowadays a growing tendency to take lightly the marriage vows and a reluctance to overcome problems in marriage; but if it is, then it is a fact of life which has to be tackled in a radical and realistic way just as it is a fact that marriages break up with or without a legal way out and that this is a problem which needs an answer or, better still, a series of answers.

That deals in a very caring and comprehensive way with many of the notions I have in this regard. Those references give us much to ponder on. People nowadays expects far more from marriage. There is no problem if one partner is prepared to put up with anything, like in the old days. When I think of my youth and the women of that time, how they slaved. But things have changed. We have social changes, progress, development and evolution, and there is nothing we can do about it. If one partner is prepared to put up with being a slave then we do not have any problem, but it is only in the situation where two people have a high expectancy from marriage that this is frustrated.

The people who campaign for divorce believe in marriage and having the position regularised, because if they did not believe in the institution of marriage they would not be concerned. They would live together, but it is because they believe in marriage they campaign for divorce.

With regard to the charge that divorce breeds divorce, we are in a very speculative area. The experience in other countries points to increases in divorce rates. At the early stages there will be high incidence of divorce. As laws become liberalised, the same happens; and then there is the ongoing effects of liberalising these laws. There would have been an increase in the number of problem marriages anyway. In Ireland can anyone seriously claim that if we do not bring in divorce legislation the problem will not [1717] escalate? Everyone is agreed that the problem will not go away. Divorce is an evil, but failure to release those trapped in marriage is a greater evil from the point of view of the individuals, children and the families and the effect on society.

I realise that, to an extent, it can be said that there will be a fundamental change in this country if divorce laws are brought in. People may not try for marriage for life, and it could be a temporary arrangement. I would have to leave that to the good sense of people. It has been said that the perception of marriage will suffer, that no marriage is safe and that standards will be affected. I do not go along with these claims. It has been said that it will be easy for one individual to will the failure of a marriage when the divorce laws are passed. At present it is easy for one individual to bring about the failure of a marriage. In all instances it is the failure of one that is the problem.

Senator Eoin Ryan asked a very important question. Where do we stop accommodating problems? There are many problems for which we do not have a solution. I would see his point, but any problem can be helped. It may not always be possible to get the ideal solution or the way out we would wish for, but it is a defeatist attitude to say that some problems cannot be solved. Some people have an unrealistic expectation as regards marriage.

I am concerned about children, because they are the innocent victims. They have a right to happiness. It is the responsibility of parents to try to achieve that happiness. Unfortunately, they do not come first in many instances. They do not get any priority. They should come first, because the future of society is at risk. I realise the importance of the family — the family where we have father and mother in a caring situation where they bring up their children in love; and, if they do not, society will suffer as a result. It is in the State's interest to see that families are happy. The broken home is a concern of the State. Divorce legislation cannot mend broken homes or broken hearts, and in those situations I do not [1718] lose sight of the fact that we are dealing with broken hearts.

Divorce legislation can bring a new start. It has been said that it trivialises marriage, but I do not believe that is so. The opposite is true. People will think more deeply before entering into a marriage commitment when they realise what is at stake. It is in the interest of society to make sure that those factors will be considered. It is more than a contract between two people. Children are also involved and society has a big concern in this regard.

I am not sure what the main causes of marriage breakdown are. Many Members have dealt with this fact. I will quote a short piece from Sociology Themes and Perspectives, a very good treatise on sociology which I have often referred to. First of all, it deals with the explanations for marital breakdown and considers a number of factors — those which affect the value attached to marriage, those which affect the degree of conflict between the spouses and those which affect the opportunities for individuals to escape from marriage. The extract states:

From this viewpoint, behaviour is largely a response to shared norms and values. It therefore follows that a change in the rate of marital breakdown is to some degree a reflection of changing norms and values in general, and, in particular, those associated with marriage and divorce. Functionalists such as Talcott Parsons and Ronald Fletcher argue that the rise in marital breakdown stems largely from the fact that marriage is increasingly valued. People expect and demand more from marriage and consequently are more likely to end a relationship which may have been acceptable in the past. Thus Ronald Fletcher argues that, “a relatively high divorce rate may be indicative not of lower but of higher standards of marriage in society”. This view finds some support from the increasing priority given to marriage and the family by the spouses in Young and [1719] Willmott's “symmetrical family” and Goldthorpe and Lockwood's “privatized family”. The high rate of remarriage also lends support to Parsons and Fletchers' arguments. Thus paradoxically, the higher value placed on marriage may result in increased marital breakdown.

On the following page a very brief extract is as follows:

N. Dennis suggests that the specialization of function which charterizes the modern family will lead to increased marital breakdown. Dennis argues that, “In so far as compansionship, a close durable, intimate and unique relationship with one member of the opposite sex becomes the prime necessity in marriage, a failure in this respect becomes sufficient to lead to its abandonment”. Put simply when love goes, there's nothing much left to hold a couple together.

I think we all concur with the viewpoint. In another small extract there is a reference to William J. Goode author of World Revolution and the Family and it states:

Goode argues that the change in attitudes towards divorce is part of the more general process of secularization in Western societies. Secularization refers to the declining influence of the church and of religious belief in general. During the nineteenth century, the church strongly denounced divorce, insisting that the phrase `till death do us part' to be taken literally. During this century, despite a strong rearguard action, the church has had to accommodate the rising divorce rate by taking a less rigid view. However, the official church position is probably less important than the declining influence of religious beliefs and values in general in industrial society. Many sociologists argue that secular, that is non-religious, beliefs and values increasingly direct behaviour. In terms of divorce, Goode argues this means that, `Instead of asking, “Is this [1720] moral?” the individual is more likely to ask, “Is this a more useful or better procedure for my needs?” '.

There is more emphasis on material matters and less on spiritual matters. Have those people who feel that divorce places us on the slippery slope — other metaphoric phrases were used in describing this problem — no faith in our people as regards the future? I have every faith in them. In looking to the future it is relevant to have a brief glimpse at the past. Most people, particularly people in a marriage breakdown situation, will say that the past means nothing to them and that they are only interested in the present and the future. Jack Goody in his book Development of the Family and Marriage in Europe, published by the Cambridge University Press in 1983, said: “None of us can entirely divest ourselves of our cultural clothing, nor is such nudity always becoming”.

There is no harm in taking a brief look at the traditional situation in past centuries. I am not a historian but nevertheless it is important to look at the past. There is no question but that the central doctrine in the Church's teaching was that marriage is for life. This, categorically and absolutely, was the Church's teaching and that will remain its teaching. In his book, Jack Goody goes back to the fourth century and deals with the different aspects of the involvement of the Church in marriage and where the Church took over from the State the total responsibility as regards marriages, declaration of valid marriages and all aspects in that area. In the fourth century there were special laws in relation to the marriage of cousins, marriage of widows, problems with adoptees and secular concubinage. The Church made certain laws in relation to those problems. It has been criticised in that its primary purpose was to acquire land through widows and other legacies. It acquired a tremendous amount of property. A central objective of the Reformation was to dispose of this property. Nevertheless, that was a central doctrine and no matter what criticisms there are, I accept that totally.

We had a difficult situation in Ireland, [1721] because medieval Ireland was divided into two nations. The Church was also affected by this division. There was the Anglo-Irish section, which had English law, and the Gaelic-Irish section, which had the Brehon laws. Of course, the Brehon laws existed into the Middle Ages. Divorce was available and there was no status of illegitimacy.

A book edited by Art Cosgrave and published by the College Press in 1985 is very useful in this regard. It states:

Within Gaelic Ireland marriage behaviour had long been the target of criticism. Throughout the eleventh and twelfth centuries church reformers within and without the country attacked a pattern of marital behaviour based not on the canon law of the church not on much older traditions. Thus the Irish law on marriage — a law of fornication rather than a law of marriage, according to Archbishop Lanfranc of Canterbury — permitted a man to keep a number of concubines, allowed divorce at will followed by remarriage of either partner, and took no account of canonical prohibitions I regarding consanguinity or affinity. It is not surprising to find, therefore, that one of the benefits which Pope Alexander III hoped might accrue from Henry II's visit to Ireland in 1171-2 was a reformation in Irish marriage customs.

Further on it states:

Many men and women among the aristocracy continued to have a succession of spouses and this was a key factor in the proliferation of some of the major families. For example, Pilib Mág Vidhir, lord of Fermanagh (d. 1395) had twenty sons by eight mothers and Toird Lealbach Ó Domhnaill, lord of Tír Conaill had eighteen sons by ten different women. And on the basis of this and other evidence, Kenneth Nichols concluded that `throughout the medieval period, and down to the end of the older order in 1603, what could be called Celtic secular marriage remained the norm in Ireland and [1722] christian matrimony was no more than the rare exception, grafted on to this system.

Of course, the penal laws in Ireland had a big impact. I will quote one short paragraph from page 95 of Gaelic and Gaelicised Ireland in the Middle Ages:

Such patterns were in no way exceptional. Murtough (`Maurice') O'Kelly, bishop of Clonfert and afterwards (1393-1407) archbishop of Tuam, had four sons, only was of whom is not known to have followed his father's profession. The second son Tomas, became, like his father, bishop of Clonfert and was promoted to Tuam shortly before his death in 1441, though he never took possession of the archbishopric. The fourth, Connor, born during his father's episcopate in Clonfert, entered the Cistercian abbey of Knockmoy, of which he became abbot. Bishop Thomas during his episcopate begot at least two sons; one became rector of Athenry and the other archdeacon of Clonfert. But besides this general tendency of the sons of the clergy to become clerics, the papal registers of the fifteenth century are full of examples of sons directly succeeding their fathers in benefices either by papal dispensation or by means of such devices as collusive law suits, etc. designed to evade the canon law prohibition against this form of hereditary succession.

The penal laws had their own problems. In pre-Famine Ireland there were early marriage, the made-marriage and the dowry. In the post-Famine period there was a big decrease in marriages and a high rate of celibacy. Above all there were high moral standards.

Through all of this there was, as there still is, unfortunately, class distinction. I will quote a paragraph from Marriage in Ireland page 103 which bears out my point. It is on the Irish folk tradition by a very noted folklorist, Caoimhín Ó Danachair. It states:

But there was one gap which was not crossed. The landless labourer was the [1723] untouchable of Irish rural society. On no account, consideration or condition would the son or daughter marry, or be allowed to marry, the child of a labourer. This gulf between the farmer and the labourer was by far the greatest class distinction, the widest social gap in rural Ireland. This was reflected in the pattern of marriage. Farmers and others of position and property had a status to maintain, and were bound by the conventions of the dowry and the marriage settlement. Labourers were more mobile, they could travel seeking work, and having found it and built a cabin to live in, could marry without further ado. Early nineteenth century documentation frequently remarks upon this, the proclivity of the labouring class to early marriage and large families, and the more circumspect approach to marriage of the farmers. Incidentally, this should be considered as a factor in population change in the nineteenth century.

You reach your own conclusion with regard to the extracts I have quoted. Maybe they do not represent the position accurately. They certainly do not represent it entirely. Many people would question whether I have selected appropriate aspects. From looking at the past, at the problems and the way people lived, I have great belief in the future. I have no difficulty whatsoever in looking forward to the future when divorce will be available. I have enough faith in the people of this country to be confident that this will not lead to the slippery slope that people have talked about metaphorically.

I would like to make a very brief reference to the Catholic Church. I am a committed Roman Catholic. I am proud to say that the Catholic Church has always stood for the respect and dignity of women. There is the objection that, unfortunately, women do not have equality with men as regards ordination but I hope this will come about. Priests are very committed people who carry out their duties unselfishly. In the past priests preached fire from the pulpits as regards [1724] sexual morality which, thankfully, is no longer the case. There is some criticism of priests to which I do not subscribe. I admire them. When we are in trouble we go to them and they are there to help us. They work a 24 hour day for a remuneration that is only a pittance. They do wonderful work as do the Christian Brothers, the nuns and all those in religious orders. We are told that the laity are the church just as much as are priests, clerics and so on. In that respect I am the Church and we are the Church. We could very well ask are we a Christian country? I am not sure how we would determine that. If we are would divorce legislation make us less Christian? I do not think so. People have to work hard at their marriages. There must be self-sacrifice and control. There are some who say that their marriages would have ended in divorce if divorce legislation had been available in their time. Perhaps this is true in a few cases. Senator Michael Higgins dealt with that. I would have great faith in people to cope with any situation so long as the will to do so is present.

I recall a very close friend of mine who is a priest telling me a story about another priest he knew who had moved to a new parish. Perhaps he was not very experienced in pastoral affairs. A couple came to him who had a marriage problem. He sat down with them and gave them advice. They went away, but came back again and again with their problem unresolved. At the end he came to the conclusion that there was no solution for them. He made up his mind to tell them that he felt there was no solution to their problem and perhaps they should separate. The next time they called it was to thank him; everything was right and they had got on the right road. I suppose that is true in almost every case. Romance starts a marriage but it takes true love to keep it rolling. Looking at Sally O'Brien across a lounge bar may make a man's heart race but the same look across a kitchen table on a cold frosty morning when the baby is teething and the kettle refuses to come to the boil can cause far different emotions.

I agree with Senators who have said [1725] that education in this regard is most important. Of course, sex education is only a part of what is necessary but it is a most important part. The schools must play their role, particularly in regard to what children see on television. By and large this is uncontrolled. The family must play their full part. When we talk about happiness in the family, it is very hard to break it down. There are different emphases on different areas. As other Members have said, what would make one individual happy could possibly make another unhappy. In marriage people should be prepared to pay the very heavy price. Marriage is a two engined machine and the two engines must be working properly and in unison. Otherwise it will not work.

I hope if this amendment goes through divorce will not be just for the wealthy. I agree it is most important to provide for the spouse and children. It would be a mistake if divorce were confined to those who are wealthy. This is another aspect we will deal with on Committee Stage. Of course divorce is bound to bring more financial problems. Those living together who already have financial problems will have great difficulty if they split up and enter into other commitments.

There are no statistics regarding the extent of the problem in Ireland. It would be very difficult to get accurate statistics. A figure of 70,000 or 6 per cent is given in the report of the Joint Committee on Marriage Breakdown. They pointed out that this is the lowest figure in Europe. Nevertheless, it is a sizeable and a growing figure. Nobody can tell us the exact extent of it. I realise there are some partners in broken marriages who do not want divorce, mainly because it would confer freedom to remarry on the other partner, or because it would interfere with maintenance orders, and so on. I understand this is a problem.

There are those who say the State will have to pay much more if divorce laws come in. I remain to be convinced in this regard because at present people with broken marriages have to be helped by the State. I know cases where married people have separated and their children [1726] have been taken into State care. That is an unfortunate position.

I have wandered a little in my contribution. My approach has been a simple one and a very concerned one. Perhaps the way I look at it is selfish. There are many other aspects to it, and I think the simple approach is the correct one. In life it is the simple things that matter.

When I was growing up as a young boy and as a young man, to put it mildly, there was no affluence. I remember going out in the spring time and getting a sally rod and making a fishing rod to catch trout in the little river. I always gave the first trout to my mother. When I asked her if she enjoyed it she always said it was the most beautiful trout she had eaten. Sometimes I fear she did not enjoy it all herself. She distributed it. I enjoyed that simple approach.

The same applies to marriage. When we get married we want to bring our partners happiness. We want to show them that they are the ones who really matter. We do everything possible for them, to live for them and give our lives for them. That is my concept of marriage: working, suffering, doing everything necessary for the partner who has committed herself or himself for life and placed that confidence in getting married.

From that point of view I am sad that in our society so many people are unable to continue with their commitments. I am sad that we are unable to transmit these values we inherited. It is wrong to bury our heads in the sand. Taking into consideration the terms of the Bill and the promise by the Government to implement this legislation which is detailed in the paper which accompanied the Bill and which I found very helpful, my response is a positive one and I will be voting yes.

Professor Dooge:This debate on the Tenth Amendment of the Constitution Bill and the referendum which it enables to take place represents another stage, hopefully a decisive one, in the long debate on the question of marriage in modern Ireland. Last November, in replying to the long debate in the House [1727] on the report of the Joint Committee on Marriage Breakdown, I spoke for over two hours on these problems. Senators will be glad to know that I have no intention of repeating that length, though I will be repeating some of the points I made.

I want to concentrate on what is in the Bill. There have been in the debate, and it is now becoming crystallised, as it were, three simple issues: should there be a referendum on this question; what should the form of that referendum be; and what should the timing of that referendum be? One thing that struck me looking at the Bill that is being put forward, and looking at the statement of intent brought forward by the Government at the same time was the remarkable extent to which the proposals coincided with what had been agreed unanimously among the members of the joint committee.

In the report of the joint committee there were diverse views on a number of points, and differences in regard to the net issue of whether one should vote “yes” or “no” for a change in the Constitution. But, nevertheless there is remarkable agreement. Perhaps, it is just as well in this debate to put the proposals on record. If we look at the report of the joint committee where it takes up in Chapter 7 this question of divorce, towards the end of that chapter it starts to give its opinions about the legal remedies. In paragraph 7.8.29 the majority of the committee believe that the referendum should be held. A minority decided that the committee should not express an opinion but that the Oireachtas should, without the benefit of the recommendation of the committee, make a decision. It is now clear that the Oireachtas is going to make a positive decision. The Oireachtas is going to join the majority of the committee in recommending that there should be a referendum.

In the report of the joint committee — and I suppose for the sake of form I had better indicate that I am quoting from the report of the Joint Committee on Marriage Breakdown, Pl. 3074 of 27 [1728] March 1985, even though it is now so well known that it hardly needs such identification — in paragraph 7.8.31 the committee were unanimous that the outcome of such a referendum was a matter for the people. By that outcome the people would decide what would be the freedom of the Oireachtas in regard to legislation.

What we are concerned with in this Bill are two things: first, what shall be the form of change on which people shall vote? We are also concerned very much in this House in setting the tone of the public debate which will take place between now and when each individual citizen who finds it worth his/her time to go out and vote goes and votes and makes an actual decision. The question about the holding of the referendum is one on which there was no dissent in the Dáil and, so far, no dissent in the Seanad.

While this House was debating the report of the joint committee there was a good deal of debate in regard to the question of timing. I still have some lingering doubts on this question. Senator Fitzsimons mentioned towards the close of his speech the fact that we still are not quite sure of the exact nature of the problem. During the debate on the report of the joint committee Senator O'Leary criticised the joint committee for not having commissioned sociological research so that the full extent of the problem would be known. The fact that this has not been done does lead us into an area of assertion and counter-assertion that would not be completely removed but would be less credible and less misleading for people if more information were available. Being committed now to the course of having the matter decided, we can and should — and I hope, indeed, we do — avoid a debate which will be merely a question of assertion and counter-assertion of points made on both sides which never meet and in which there is no attempt to find where is the common good.

As regards the question of whether the decision by the people should be in the form it is in the Bill, again this form follows very closely what the members of the joint committee put forward. Even [1729] though the committee were divided on the advisability of divorce as Members of the Oireachtas are still divided on the general question of the advisability of divorce, nevertheless, the joint committee did make some recommendations. Since they had gone into this matter in detail and since they had the benefit of a great deal of expert evidence, it is heartening that what the Government are proposing is so close to what the joint committee suggested. For example, in paragraph 7.8.30 of their report the joint committee reported as follows:

The committee is also of the view that any amendment should be drafted in such a way as to ensure that the basic emphasis of Article 41 is not altered, in that the Article should continue to place a duty on the State to protect the family and the institution of marriage and to recognise the family as the natural primary and fundamental unit group of society.

That criterion is met in the form of the Bill before us and will be met, in future legislation, as is quite clear from the statement of intent which the Government have produced.

Also in paragraph 7.8.33 talking about the nature of possible divorce legislation, the joint committee came out quite clearly with the point that divorce on demand was not appropriate in this country. Of course, the proposals that have been introduced in the Bill which is before us at the moment are very far from divorce on demand, very far indeed from being an unrestricted form of divorce as occurs under many jurisdictions. Divorce on demand is not in this Bill. You have only to look at the Schedule, part 2. And here I have a little bit of confusion. We have Articles and sub-Articles in the Constitution but what a sub-paragraph in a Schedule is called I do not know. Senator McGuinness may be able to help me on this. I must say my knowledge of nomenclature fails me. If we look at page 6 of the Bill, lines 17 and 18, it is absolutely clear here that there is not divorce on demand. There is not an unlimited type of divorce, that at the first sign of [1730] marriage breakdown, divorce on demand is available.

Here in the Bill that we are now being asked to enact, which will form the question to be put before the people, it speaks on “the failure has continued for a period of, or periods amounting to, at least five years.” Again, looking at the next lines, lines 19 and 20, what the people are being asked to do is to put into the Constitution an Article which will prohibit divorce in all cases where there is a reasonable possibility of reconciliation between the parties to the marriage. The following two lines also indicate that any other conditions can be prescribed by law and that limitations can be put in. So the ability to protect the family, the ability to promote the welfare of the family as a family, is adequately protected in this Bill.

There was other points suggested by the joint committee about the nature of possible divorce legislation. For example in paragraph 7.8.34 they talked about the dangers and damage due to the adversarial element. They made a very strong recommendation and I quote again from that paragraph 7.8.34:

The constant theme in the opinions and observations of this committee has been the need as far as possible to reduce the adversarial element in marriage breakdown. The Committee consequently feels that any divorce law should be based on the concept of marital breakdown. The Committee believes that this approach will reduce the acrimony and bitterness and would assist separated parents in the continuing relationship between themselves and their children.

That is not a paragraph from a majority of the committee. That is not a paragraph merely from those who were in favour of an immediate change. That paragraph is the unanimous opinion of the committee. In other words all members of that committee, no matter what their views were in regard to the question, of a possible change in the constitution, agreed unanimously that if there is to be a change this is the way it must go. It should be based [1731] on the concept of marital breakdown. The procedures that should be adopted should reflect this.

Again in the following paragraph 7.8.35 the committee discussed the advisability of any divorce being prefaced by an initial separation. That is part of the Government's statement of intent, that element is clearly set out as being part of what the Government intend to do. In paragraph 7 of the Government's statement of intent, it is quite clear that the Government intend, under the legislation, which we hope the passage of the Bill by referendum will allow, to fully remove the adversarial element. If we look at paragraph 14 of the Government's statement of intent, we see quite clearly the role of a five-year separation as a preliminary to divorce.

I want to emphasise that point. It has been rather lost sight of that there were so many points on which the joint committee were unanimous. We tended to concentrate, in the aftermath of the presentation of the report of the Joint Committee on Marriage Breakdown, on the points of difference. That is why today I want to stress the points of agreement, of unanimity, of that committee and to stress and to stress the fact that they are reflected in the Government proposals.

We are facing, in this Bill and referendum test, a question that is going to cause difficulty for the majority of our electorate. It is going to be easy for some. For them divorce is a basic right, so they must vote for change. For others divorce is an unmitigated social evil, so they must vote against any change. I believe these two are minorities. I believe that the majority of our people are searching for an answer to the question: where does the balance of advantage lie? How is the common good to be best served?

The vast majority of our people believe that we have an extremely serious problem in regard to marriage breakdown, but at the same time are hesitant to step into an unknown situation which would follow the introduction of divorce.

Let me be quite frank. It is not easy for me and it is not easy for any Catholic [1732] legislator to conclude, without deep consideration that the common good in this country demands a departure in the public domain from that position, which we personally in our own lives accept as part of Catholic doctrine and of Catholic discipline. Nevertheless, every Catholic legislator like myself has a duty as a Catholic politician, just as I have a duty as a Catholic husband and as a Catholic father. This is the distinction which we as legislators must make and it is the distinction which the citizens must make: the distinction between what is accepted as a matter of doctrine and discipline in their own lives and what is the appropriate thing to be accepted in the community at large.

I took the trouble to go back and read what is the most recent authoritative statement of the Catholic Church on this problem, namely, the Pastoral Constitution on the Church in the Modern World, one of the last documents to be adopted by the Second Vatican Council just 20 years ago. It is in many ways an interesting document. I will quote the English translation which is in The Documents of Vatican II, published by Geoffrey Chapman in 1967 — it is pointed out quite clearly that this was a quite unusual document, the only document of the council that arose not from preparatory commissions but from the floor of the council itself for consideration, which was debated at length and finally adopted. It falls into two parts. In part 1, chapter 1, there is a very clear exposition of the teaching of the Catholic Church on marriage and on human love. People like myself, who accept the Church's teaching on this point, must in our personal capacities accept what is in this Constitution in paragraphs 47 to 52. Part 2 of this remarkable Pastoral Constitution on the Church and the Modern World goes on to deal, not with the problem of the individual Catholic or the individual Christian, but with the relationship of the Church to the world and the relationship of the individual Christian to the social problems that exist in the world today.

I should like to put on record just a few sentences from the second part of [1733] this Pastoral Constitution on the Church in the Modern World because they are highly relevant to the situation that Catholic legislators face and that Catholic voters will face in a few weeks time. What is remarkable about this Constitution is the manner in which it departs from the idea of the uniformity which was characteristic of the Church's view of the State prior to this time. For example, we find in paragraph 74 of the Pastoral Constitution on the Church in the Modern World the clear recognition that there is not just a single group. Paragraph 74 of the Constitution states that many different people go to make up the political community, and these can lawfully incline towards diverse ways of doing things. This is our problem. Certain members of the clergy may dismiss plurality as a foreign thing — some of them almost characterising it as a disease — and we find in this definitive statement the recognition that in the modern world plurality is a reality and plurality is something on which the Church must define its attitude. In this particular document the attitude of the Church, and the duties of the Catholic politician, are indeed well defined. There is in paragraph 75 a very clear indication — again it is only necessary to quote one sentence. The whole of section 75 deals with the role of the Catholic citizen and the role of the Catholic legislator. It ends with the following sentence:

Let them devote themselves to the welfare of all sincerely and fairly, indeed with charity and with political courage.

That is what is in the proposals that are before us here today, an attempt to deal with the welfare of all the people of this country, to deal with it fairly, charitably and, goodness knows, it has needed political courage.

The following section of this Constitution on the Church in the Modern World goes on to emphasise the distinction that must be made between the Christian individual and his own moral life and the Christian in public life and his political duty. I quote from paragraph 76 of the same work:

[1734] It is highly important, especially in pluralistic societies, that a proper view exist of the relation between the political community and the Church. Thus the faithful will be able to make a clear distinction between what a Christian conscience leads them to do in their own name as citizens, whether as individuals or in association, and what they do in the name of the Church and in union with her shepherds.

Those words were written 20 years ago. I hope that 20 years later they, indeed, are true in this country, that the faithful will be able to make this clear distinction that sufficient numbers of the members of the Catholic Church in Ireland will be able to make the clear distinction with what their Christian conscience calls upon them to do as citizens and what they do in the name of the Church and in union with her shepherds. The “union with the shepherds”, as the House will note in this sentence, is confined to what is done in the name of the Church and does not govern and is not mentioned in regard to what they do as citizens.

We must recognise the need for the distinction I have spoken of because I believe the problem we face is a problem of every individual making up his or her mind as to where the balance of advantage lies. There are disadvantages. I do not think anybody who has been brought up in this society is going to welcome the introduction of divorce per se or look on it as something which is good in itself. But neither can people in this society remain blind to the fact that marriage failure is not merely a growing problem in our society but is one of the most serious. There seems to be very little talk at the moment that extended nullity will take care of this problem or that a better preparation for marriage will alleviate this problem.

We may well hear within the next few weeks: “let us prepare people better; let us have better mediation services; this is the answer to the problem.” We heard something like that spoken of at great length during a previous referendum [1735] campaign. The unmarried mother or unmarried expectant mother was supposed to receive a whole new order of appreciation from society. I have no real means of knowing whether such a revolution has taken place. I have only a very small sample to go on — the occasions when I happen to be driving somewhere with the radio on and listening to the “Gay Byrne Show”, the tone of telephone messages to that programme and the tone of letters to other programmes and to other media do not indicate that there has been one whit of an improvement in regard to the charity of the attitude towards the position of the unmarried mother despite all that was said during a previous referendum campaign.

We have got the real problem to meet and it must be meet in the only way that it can be meet. Twenty years ago when the problem was less than today I and some of my colleagues came out publicly for the removal of the absolute ban on divorce. Now 20 years later the case is so much stronger as to be to my mind overwhelming. It is in order to protect the family as the basic unit of society that we must deal with what has happened, that we must deal with these marriages of cruelty, with marriages that are nothing but dead ashes and are only a caricature of family life. It is in that spirit that I support this referendum Bill and propose to vote for it as a citizen.

I want finally to return to the “Pastoral Constitution on the Church in the Modern World.” Like most documents which are issued from Rome it has a shorthand title based on the opening words. It is known as “Gaudium et Spes”— Joy and Hope. This is very appropriate to the problem we are considering. The first few words of this document so relevant to our problem are joy and hope, just as joy and hope are the two things that are most present at the beginning of every marriage. But these are the opening words of the sentence and the full opening sentence reads:

The joys and the hopes, the griefs [1736] and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these too are the joys and hopes, the griefs and anxieties of the followers of Christ.

The griefs and anxieties of those who are subject to the terrible problem of marriage breakdown, those in whom either personal defects or else the overwhelming burden of griefs and anxieties have destroyed the initial joys and hopes, are our concern not just as secular legislators but they are our concern as Christians and we have a Christian duty to look at this problem calmly, as fully as we can and then to do our Christian duty. What we do in respect of that has absolutely nothing to do with what our attitude is to the question of divorce in our own marriages or in our own lives. We have our separate duties as legislators and our electorate have their duties as citizens. My hope is that when this duty is done this problem which has been with us for so long and which if allowed to go on much longer could overwhelm us in many ways from a social point of view, will be not only no more but that the way will be open to cope, not with a reversal of what has happened, but with a containment of the evils that have followed from these marriage breakdowns.

Mrs. McGuinness:I welcome this Bill. As the House will know my opinions on this subject have long been formed and I have consistently been of the opinion that the present situation with regard to marriage breakdown in this country demands the introduction of a limited form of divorce. As a member of the Joint Committee on Marriage Breakdown I welcomed Senator Dooge's references to the report and to the close way in which the proposed Bill and the proposed statement of intent by the Government follow the lines recommended by the committee who spent considerable time considering this question and who heard such a wide selection of expert evidence from both sides and in particular expert evidence from those who work in the field of marriage breakdown. By this I mean not the theoriticians of the law but those who [1737] practise in this field — social workers, marriage counsellors and so on.

In referring to chapter 7 of the Committee on Marriage Breakdown report, Professor Dooge went through a number of matters. I would like to add as an appendix to what he said on this subject that the last paragraph of chapter 7.8.35 is also reflected in the proposed legislation and the statement of intent in particular. This paragraph sets out the desirability of considering irretrievable breakdown in the context of judicial separation and it states that if judicial separation and the dissolution of marriage are both to be granted on the basis of irretrievable breakdown, then it would appear logical that there should be some link between the two reliefs.

The committee believes that the granting of a decree of judicial separation should be a first step, whereby a person could apply after a fixed period of time, from the granting of a judicial separation, for a decree of divorce.

This, too, is reflected almost exactly in the Government's statement of intent. Again, the last paragraph states that “the basis on which the parties are to live separate and apart would be decided at the date of the judicial separation. This would ensure that the interests of the dependent members of the family and particularly the children would be protected from an early stage.” Again, this is closely reflected in the Government's proposals and as a member of that committee I am pleased that it is.

Before I go on to the main part of my speech I would like to congratulate Senator Fitzsimons on his long and carefully thought out contribution to this debate. On previous occasions I have said that I have always found Senator Fitzsimons to be a man of integrity, of compassion and of courage and certainly, having listened to what he had to say on this subject last night and this morning, I have no reason to change my opinions but have found my opinions to be reinforced.

A number of Senators have mentioned the possibility of including a somewhat [1738] detailed amendment to the Constitution which sets out parameters of divorce legislation rather than simply abolishing the actual ban on divorce in the Constitution. This view was also expressed on Wednesday last at the Synod of the Church of Ireland by Dean Victor Griffin, the Dean of St. Patrick's Cathedral. I appreciate what has been said by my colleagues in this House and by Dean Griffin but nevertheless I have to have regard to the united legal opinions of the members of the Joint Committee on Marriage Breakdown that the mere removal of the ban would not be a successful way of dealing with the matter and, more important, it is quite clear that the Irish people as a whole want divorce only as a last resource. They want it only after every effort at reconciliation has been made and after sufficient time has elapsed to ensure that the marriage is truly dead. It is also clear that none of us in this country would accept any form of divorce which did not give real and effective protection to what has been described as the first family.

I would question this phraseology because from my experience in the family law area I feel that there will be people whose marriages have failed or broken down — whatever phrase we like to use — who will seek divorce in order to end their dead marriages without necessarily deciding that they wish to remarry. It is, of course, true that to provide divorce provides an opportunity to remarry but it will also provide an opportunity to regularise the dead marriage, to make an honest admission of the fact that the marriage has ended. Many of the people with broken marriages that I have spoken to would be most anxious to achieve this even with no intention of remarrying or setting up a second family. To use the phrase “first family” and thereby imply that in every single case of divorce there will be a remarriage and a second family seems to me to distort the issue.

The wording of the amendment which is before the House today will give, not only statutory protection to the dependent spouse and children in a family where a decree of divorce is granted, but [1739] also give constitutional protection and this is extremely important. It will give constitutional protection of a sort which will be more practical and explicit than the idealistic but vague aspirations which are at present contained in Articles 41 and 42 of the Constitution. While Articles 41 and 42 give high-flown sentiments about the Christian and social values of marriage and about the protection of the family they do not actually set down in any concrete form the way in which families can be protected whereas the proposed amendment states firmly that the court may, in accordance with law, grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and for any child of, or any child who is dependent on either spouse.

It also provides that any other conditions prescribed by law would have to be complied with. This is an important phrase because it means that any statutory condition that is set down will have an additional constitutional back-up. It will not be automatically assumed to be valid in accordance with the Constitution but a specific duty will be laid on the court to take account of the constitutional back-up of the conditions which may be prescribed by law. This, in many ways, will offer a greater practical protection to spouses and children where marriages have broken down than the present situation offers.

To change the Constitution, which has been in effect since 1937, is a very serious matter and must be taken seriously. Before we decide to support such a change there are a number of questions which we must ask ourselves. First, does the present constitutional position achieve what was intended by those who framed it? Secondly, is there a social need for the change we propose? Thirdly, does the proposed change bring new dangers, dangers that are not guarded against by the form of the constitutional amendment and by the Government's proposals, and, fourthly, is there an alternative [1740] to this change and if so, is it more desirable? When I speak of an alternative I hope to deal with the possible alternative of nullity which has been put forward by a number of the opponents of the introduction of divorce.

I shall take the first of these questions — does the constitutional position achieve what was intended? If we look at Article 41 we see that by preventing divorce presumably it is meant to guard against marriage breakdown. It also uses other phraseology such as in Article 41.2º, which states:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

I would ask whether the ideals set out in Article 41 have in fact been achieved by that Article. As far as I can see the only steps that the State has taken with regard to preventing mothers from being forced to work outside the home is to pay them a small sum by way of children's allowance which in no way would prevent any wife from having to work outside the home. Certainly, there has been no sign of this Article being used to protect any mother who followed the legitimate and desirable choice of staying at home to look after her children and, incidentally, her husband. Indeed, the legal position of such women is rather worse than that — particularly with regard to matrimonial property — of women who choose to disregard the Article and to engage in paid employment outside the home. In relation to forbidding divorce so as to protect the family this has manifestly not prevented marriage breakdown. It has not prevented the economic deprivation of families affected by marriage breakdown.

It has not prevented the economic deprivation of families affected by marriage breakdown. It has not prevented the suffering of children owing to marriage [1741] breakdown or the separation of their parents. It has not prevented the loss of family homes, despite the somewhat limited protection which has been provided by statute under the Family Home Protection Act. It has not prevented the creation of second families however unofficial, the second families created either through simple cohabition or through the obtaining of divorces outside the jurisdiction, valid or invalid, or through bigamist marriages following on Canon Law nullity provided by the Church.

It seems, in so far as we can judge the statistics — and I would agree with previous speakers that the statistics are at present fairly doubtful — but in so far as we can find out the statistics, marriage breakdown in this jurisdiction where there is a ban on divorce is on much the same level as in Northern Ireland where there has for long been divorce. It is on much the same level as in Spain and Portugal where divorce is provided. It is probably considerably higher than in Italy where divorce is provided.

It has been suggested that to change the Constitution will change our general attitude to marriage and that our present total commitment to lifelong marriage will be watered down and taken away. Sometimes I wonder where people live who make this kind of assertion. Do they really live in the same Ireland as I live in? Do they really live in the same Ireland where they can see marriage breakdown taking place, separation taking place, second families being formed in spite of what is described as the splendid quality of life which makes us committed to lifelong marriage?

The second question which I posed was, was there a social need for change? This question has been answered by the contributions both of Senator Fitzsimons and of Senator Dooge but I would point out that in our present situation without any change in the Constitution, the social situation is that the position of both the first and second families where such second families exist, is unreal and poorly protected and is not properly recognised in law. It has been suggested by Senator [1742] Eoin Ryan that what the Government should do is exercise leadership. He suggested that perhaps to respond to social need by introducing divorce is to abdicate leadership, as it were, that we should be leading in the moral direction and not responding to public demands for social change. I would say to Senator Ryan and those who feel like that that facing facts and behaving with honesty is not abdicating leadership but properly exercising leadership. We are here, not just as leaders but also as representatives. We must, as representatives, take note of the articulated need for social change that is quite obvious in this situation.

There is also a great deal of reference to pressure groups. Sometimes I wonder how large it has to be to be a pressure group. In a situation where public opinion polls show that well over half the population feel that divorce should be granted in certain limited circumstances, are we going to describe over half the population as a mere pressure group? There are undoubtedly small groups on both sides of this question who are pursuing either change or refusal of change with great fervour. It is not just the question of these particular groups; it is a question of the feeling of the whole population. In this situation a majority of the population see the need for social change. They see the suffering of those who are affected by marriage breakdown. They see the second relationships that have occurred. They see the sometimes dubious use of nullity as an alternative. They see people going for foreign divorces. They see people spending large sums of money going to places like Haiti to obtain foreign divorces which are in fact unrecognised in this jurisdiction but which make these people feel that at last they have ended the suffering that they have been going through and that they can start a new life. Ordinary people can see this happening all around them. They can see the need for the ending of failed and dead relationships rather than letting them fester, increasing suffering for everyone.

The third question which I put was [1743] whether the change would bring new dangers, dangers that do not already exist and that would not be offset by the proposals contained in the Bill. It has to be admitted that no change can be brought about without some danger. One must weigh the dangers against the advantages. I would suggest that when we are talking about the dangers of change, we should talk about real dangers of worsening the present position as it is, rather than imaginary dangers of worsening some kind of ideal position which exists only in the heads of groups like Family Solidarity, the Knights of Columbanus or perhaps Senator Hanafin and which has little or no relation to reality.

We have been threatened with dangers of three kinds, first, dangers to morality and the qualify of life; secondly, the danger that the introduction of divorce will open the floodgates, will set going the juggernaut that will go down the slippery slope and mean that at the end of two or three months, there will hardly be a marriage left alive in Ireland; and thirdly — recently this has been very much brought to the fore — we have been threatened with the danger that the rights of the first family — and I already referred to the use of the word “first family”— particularly with regard to property, will be affected. First of all, with regard to the quality of life and morality, I have already said, and I repeat, that given the present level of marriage breakdown and given the general public opinion on marriage, it is very hard for me to believe that people's view of marriage is as pure and elevated as has been argued or that people believe that marriage cannot break down just because we have a ban on divorce.

People in this country have a real and genuine Christian commitment to lifelong marriage but they would have to be very short-sighted not to realise that marriages do sometimes end and not to be aware of that before they get married as well as after they get married. I cannot see that the provision of legal divorce will change people's attitudes in this way. People react to the realities of their lives, [1744] not to some kind of legal theory. I cannot see that the quality of Irish life is being maintained or improved by the hypocrisy of pretending that marriage breakdown does not occur or by the feeling that if we stick our heads firmly enough in the sand, marriage breakdown will go away and that we can go on condemning both first and second families to suffer without end.

With regard to the arguments that, to provide divorce will open the floodgates, I do not feel that I need to go into this at all because it has been so satisfactorily dealt with by the contribution of Senator M. D. Higgins and by various other speakers. I would just say that it seems to me to be basically wrong to trot out figures which apply to western California and totally ignore figures which apply to Catholic countries, such as Spain, Portugal and Italy. I would join Senator McGonagle in saying that as a person coming from Northern Ireland and frequently returning there, I find it not only unbelievable but it is just plain insulting to suggest that as far as Northern Ireland is concerned people are more depraved, more immoral and less committed to lifelong marriages just because divorce is available.

I propose to deal at somewhat greater length with the dangers that have been put forward with regard to the rights of what was described as the first family. This was dealt with at considerable length by the Minister of State in her very able introduction of the Bill. She dealt with it very well. I would like to bring some of her arguments down to a practical and illustrative level, which is gained not from expertise in theory but from real experience in what happens to families where marriages break down.

In his contribution to this debate Senator Eoin Ryan has said that in practice one breadwinner will not be able, satisfactorily, to maintain two families in comfort. Of course, that is true. That will be true after divorce, it is true now before divorce. Even where there is no second family, it is frequently true that one income cannot maintain two separate households where marriages have broken [1745] down and where there is divorce a mensa et toro or a separation.

There are second families existing now. I have observed that in allocating maintenance the courts, who are presided over by practical judges and justices who see what is really happening, are well aware of the fact that there are second families, well aware of the fact that there are new children born to one or other party. The courts already make allowances for the fact that a man or a woman may be supporting children of a second union. This occurs now. It is not one of these far off dangers that may happen if we introduce divorce.

There are also judgments, which have been made by a number of High Court judges on section 117 of the Succession Act, which is the section which permits children to apply when they feel that their parent has not made proper provision for them in a will. There are judgments which recognise what is described — please note the phrase — as “the moral duty” of a husband and father to provide for a second wife and family even where such a marriage was of extremely dubious legality, because it was based on a foreign divorce or something of the sort. In fact, it was quite clear in one particular case that I recall that the second marriage was not a legal marriage as far as Irish law was concerned. Nevertheless, Mr. Justice Declan Costello, whose commitment to Christian morality cannot be questioned, specifically said that the husband in that case had a moral duty to provide for his second wife, even if he did not have a legal duty, and he refused to alter the will to take the rights of property away from the second wife and to give them to the children of the first family, who had already been well provided for.

Perhaps the courts' view of responsibility for dependants and the courts' view of morality is more real and practical than the views of some of the anti-divorce lobby. I would suggest that we are not attempting to move from a situation where what is described as first families are protected, provided for and safe, to a situation where all protection will be stripped away. We are in a position now [1746] where first families may, theoretically, be protected but are, in practice, economically deprived, frequently losing the family home, poorly, if at all, maintained and often dependent on social welfare payments such as the deserted wives' allowance.

As far as children and their protection is concerned, I would suggest that, as legislators, we do not care all that much. The Court's Act of 1981 pushed custody jurisdiction into the District Court. That court can make custody and access orders under the Guardianship of Infants Act, 1964, but it cannot enforce those custody orders and that has been very clear for some years. As soon as the Court's Act was passed, the Civil Legal Aid Board suggested to its solicitors that they should take custody actions in the District Court. The solicitors replied that as far as they knew there was not power to enforce these orders. If somebody broke them the court could do nothing about it. The Civil Legal Aid Board were very puzzled. They contacted the Department of Justice, who also said, apparently, that they did not know what the situation was and that they should seek Counsel's opinion about it. The Civil Legal Aid Board did seek Counsel's opinion and Counsel's opinion stated that the District Court could not enforece these orders. This must have been at least three or four years ago. Nothing whatsoever has been done. It is now the intention of Senator O'Leary and myself to try to amend the present Court's Act in order to provide for the enforcement of such orders. That is how much we care about what is done, in the situation of marriage breakdown, for the custody of children and the protection of children. We are prepared to make paper orders but we are not prepared to make sure that these orders can be enforced.

In recent days I have noticed that those who oppose divorce have, to some extent, abandoned their moral arguments and rely heavily on forecasting the dire financial consequences for the first family. It may be uncharitable of me, but it is hard to avoid the suspicion that they have realised that the Irish people have become adult and able to judge moral [1747] issues for themselves, in much the same way as has been suggested so ably by Senator Dooge. The anti-divorce people have fallen back on an effort to terrify wives in both successful and unsuccessful marriages by threatening dire poverty and a complete lack of protection. I think, as did the Minister of State in her contribution, that some factual light should be cast on some of these “Frankenstein” forecasts.

Firstly, with regard to the Succession Act, I might ask how many families involved in a marriage breakdown situation actually have large property to pass under the Succession Act? It was suggested by Mr. Dick Walsh in a recent article in The Irish Times that many of them do not come within an ass's roar of having property to pass by will. I think that is very often true. Very few of them have any property other than a family home, which is held subject to a heavy mortgage. Where such a family home is held as a joint tenancy the survivor will take the whole of it in any case without any will or without any Succession Act. I note in this context that the Government have proposed that all family homes should be held jointly in this way and I look forward to this legislation.

As the Minister of State has said, the succession rights of children would not be affected by divorce. The judgments we already have under section 117 take note of second families. So, we are left with the Succession Act rights as between those spouses who have property. Here, I should point out that in virtually every separation deed we already have mutual waiver of Succession Act rights. In divorce, a mensa et toro, again as pointed out by the Minister of State, we have the ending of Succession Act rights on the one side, and it has been proposed by both the Law Reform Commission and the Committee on Marriage Breakdown that divorce a mensa et toro should end succession rights on both sides.

When I thought about this I was interested to look again at the report of the Law Reform Commission on divorce a mensa et toro and related matters, which [1748] is Law Reform Commission Report No. 8, published in 1983. On page 59, in their proposals for reform of successions rights to spouses, there is a suggestion by the Law Reform Commission. This is in the context of judicial separation, which we already have, not divorce. It reads:

When, as we propose, other grounds for a decress for legal separation are established, the position regarding Succession Act rights becomes more complicated. The law no longer necessarily has to deal with a spouse who even arguably is unworthy to succeed. In some cases the respondent spouse may well be entirely worthy to succeed and, if anyone is unworthy, in some cases it may be the petitioner. This could be the position.

—Note this—

where a spouse who has behaved badly seeks a decree for legal separation based on the breakdown of the marriage or on the fact of the five years separation. The other spouse may have behaved loyally throughout and still be willing to continue to discharge the obligations of marriage. Conversely, there may be cases where both spouses, and other cases where neither spouse, may be considered unworthy to succeed to the other's estate. This could be the position in some cases where the spouses separate by consent and seek a decree of legal separation based on one years' separation or a decree converting a separation agreement into a separation decree.

The Law Reform Commission goes on to say:

We have analysed the detailed several possible approaches to resolving these difficulties.

They then go on to say:

A third approach, which we favour, is for the legislation to provide for that on the granting of a decree for legal separation each spouse is to be precluded from taking any share in the other's estate.

[1749]—In other words, Succession Act rights should be ended—

This approach has of course the virtue of simplicity but it could be argued that it would be unfair to innocent spouses who perhaps, in contrast to their spouse have been guilty of no matrimonial misconduct. We appreciate the force of this argument but we are satisfied that the court could take these factors into consideration in the exercise of its powers relating to alimony and property rights after the decree.

This surely is almost precisely what is being recommended by the Government in the case of divorce.

When we look at this proposal that judicial separation alone should end the Succession Act rights, we might ask in curiousity who was the chief family law researcher and who was the chief drafter of the law Reform's Commission reports on family law matters. Surely it was the same Mr. William Binchy, expert on family law, barrister-at-law, who does not, of course, practice in family law, who is now coming out with statements in all the newspapers saying that the Government are going to sweep away the Succession Act rights of the first family by their proposals for divorce. Yet this same Mr. Binchy was surely, largely speaking, the author of the Law Reform Commission's report which proposes that the same Succession Act rights should be completely taken away by judicial separation. I find it very difficult to see as anything other than a form of hypocrisy the suggestion at one moment that Succession Act rights should be taken away on judicial separation and the next moment to suggest that the Government are doing something absolutely terrible in introducing divorce and leaving it to the discretion of the courts to make sure that property rights will be so organised that the first family will be protected and in that case protected by the Constitution rather than merely by statute.

Again with regard to matrimonial property in the family home, we are in a position now that under the Family Law [1750] (Maintenance of Spouses and Children) Act 1976, There is no power to make lump sum orders in regard to maintenance of any spouse or child. There is only provision for what is described as periodic maintenance, that is weekly or monthly payments. Often it may be the case in a marriage that a wife would be far better protected by an immediate lump sum payment where such is available or by property transfer than she would be by periodic payments in respect of which there may be considerable difficulty in the matter of enforcement and which can be negatived by the husband going to some country, other than England, with which we do not have reciprocal maintenance arrangements. At present the court cannot make this sort of order. Indeed the very fact that they cannot make it tends to militate against settlements among separated spouses where one would like to arrange for a lump sum arrangement but cannot guard against a later application for maintenance.

The proposals by the Government in regard to divorce would actually improve this situation by allowing lump sum transfers of property and money. Again under the Married Women Status Act 1957 there is no power to transfer property. Here again I challenge Mr. Binchy in his criticisms of the Tánaiste, where the Tánaiste said that at present there was no power to transfer property. He was being scorned from a height by Mr. Binchy from his ivory tower in the Law Reform Commission, where he, no doubt, reads all the written judgments of the High Court, but has never actually dirtied his hands by practising in the family law courts or sullied his ears by listening to the pain and suffering of a family law client. I would point out that the Tánaiste, in his earlier career was in a somewhat different position, because in his earlier career as a barrister he did actually deal with family law at what I might describe as the court phase. He has seen what happens in maintenance, what happens in marriage breakdown. He has also seen the way in which nullity can be used as an effort to cut off the Maintenance and Succession Act rights of a wife.

[1751] It is important to say that on a practical level, while there is under the Family Home Protection Act a theoretical power to transfer property, which I will refer to and indeed which the Minister of State referred to, in practice this has no reality, or very little. Under the Married Women Status Act all that the court has is a power to recognise that the wife owns some of the property due to her financial contributions. It does not say that the court can change property. This has been emphasised over and over again in the judgments. It only says that the court can recognise that the wife owns a certain amount because she has put in financial contributions. And what is more, the judgments have emphasised again and again that the wife will gain nothing in the way of matrimonial property by staying at home, looking after her husband and looking after her children, as suggested by Article 41 of the Constitution. That is how much Article 41 protects the family at present.

Again, many people think — and I find this over and over again — that the Family Home Protection Act gives the wife a half share in the house. It certainly does not. It simply, and not always very successfully, prevents the spouse from selling or mortgaging the house without the consent of the other spouse. Suppose we get into a position where the family is in debt and cannot pay their debts, not through mortgages but other debt, whereby the creditor can get a judgment mortgage against the family home. In this situation it is being held by the courts, in particular in the container car case and in Murray v. Diamond, that the Family Home Protection Act does not protect the family home, that the house can be sold without any protection of the wife and children. Is this the safe situation which we are desperately trying to retain? The only transfer property to the wife that can exist is under section 5 of the Family Home Protection Act and this again was referred to by the Minister of State. I am presuming that this is the transfer of property that Mr. Binchy is [1752] referring to in his criticism of the Tánaiste.

The Minister of State mentioned two cases in which this was done. I can recall about three others where there was no written judgment in which it was also done, but certainly in all the thousands of cases in which the family home is under threat, there have certainly been far fewer than ten cases in the ten years since the Act has been past where property has actually been transferred. The reason for this is again, as referred to by the Minister of State, that there has to be the element of necessary intention. What this means in practice is that in order to have the family home transferred to the wife she not only has to prove that the husband has been reckless, careless, foolish gambling addict or whatever and has got himself into debt which is endangering the family home but that he did all these things on purpose to take the family home away from his wife. I would suggest that it is extremely difficult to prove that in any case. That is why there are so few transfers of property under this section.

Again I would suggest that both the amendment proposed by the Government and the statement of intent would offer much better protection to the wife and family than this particular protection.

In general about these dangers, I would share Senator Dooge's feelings about the way in which the run up to this amendment is beginning to resemble the run up to the previous amendment. I am somewhat suspicious of the sudden concern of many groups of people about the fate of separated spouses and the fate of those whose marriages have broken down. Where in the past ten years have we heard Family Solidarity or any of these other groups pressuring for amendment of the Married Women Status Act, or of the Family Home Protection Act to protect families? Have we seen a flood of Private Members' Bills from Deputies Alice Glenn, Oliver Flanagan, Padraig Faulkner or Senator Hanafin seeking real protection for the family? No, their silence has been deafening. I suggest that their silence will be equally deafening if [1753] the amendment is defeated. Like Senator Dooge I remember the last amendment campaign, the so-called pro-life campaigners were loud and long in their concern for the unmarried mother and her child. Where is that concern now? Surely these are the very same people who are opposing the Status of Children Bill, the very same people who are screaming about the injustice of paying unmarried mothers a meagre social welfare allowance. Where is their compassion and their practical concern now? Surely, again, these are the same people who are now weeping crocodile tears over the fate of first families. I would suggest that wives and children should be very slow, indeed, to rely on this kind of compassion and support. It will not outlast the day the referendum votes are counted.

We ought to offset against what I have shown to be the falseness of the dangers which have been suggested the advantages of change. I do not want to deal with them necessarily at length because many other Senators have dealt with them already. I would set forward, in particular, the protection of the second family as was dealt with again at length by Senator M. Higgins. I would set forth the advantage of the constitutional protection of a practical nature for the first family which is given in the amendment. I would set forth the advantages given in the Government's statement of intent. There I would look at the advantages of the very welcome changes in legal procedures for separation in the law on judicial separation allowing grounds of desertion. At present it seems totally illogical that one can get a decree of judicial separation for cruelty and for adultery, but one cannot get a decree of separation if one's spouse has simply left, and done nothing for the wife and children for the last ten years. There is also the improvement of the financial order situation and, in particular, the provision of a proper family court structure which is something that those of us who are involved in family law have looked for for many years.

I hope very much that, when the Government are drafting — if they get the chance — legislation on this matter, [1754] they will consult with practising family lawyers as to the formation of these courts and the way in which they should carry out their business. This would be a vast improvement on the present situation where through no real fault of the present courts, but just through the fault in the system under which they operate, any appearance in court in a family law matter can be very much a kind of murder machine and torture to the unfortunate people involved. I also welcome the proposal to change the law relating to the minimum age of marriage and raising it to 18 and to introduce a minimum period of notice of marriage of three months. Again, these are parallel to recommendations made by the Joint Committee on Marriage Breakdown and I would be extremely interested to see these put into effect. I feel that all these solid advantages, which are real advantages, can be balanced against dangers which I hope I have shown to be unreal.

The fourth question I asked was: is there a viable alternative? This possibility of an extension of the law of nullity, and perhaps bringing it into line with Catholic nullity, has been put forward by a number of speakers in another place and in public speeches. Again, this has been referred to both by Senator M. Higgins and by Senator Robinson. But, I would repeat — at the risk of boring the House, but it should be on the record of the House — some of the things which I said yesterday afternoon in the Church of Ireland General Synod about the effects of a decree of nullity on what is so kindly called the first family.

Let us look at how the wife in the first family is affected by a decree of nullity. She loses all her Succession Act rights. She has no right at all to maintenance from her so-called husband because she is not a wife. She cannot obtain the protection of a barring order because she is not a spouse. She and her children will lose all the benefits of the Family Home Protection Act because they are no longer a constitutional family. She has no property rights under the Married Women's Status Act because she is not a married women. She cannot obtain [1755] deserted wife's allowance or any other social welfare payment which is dependent on being a wife. That would include presumably widow's pension and so on because she would not be a widow. The court under present nullity law has no power to order alimony for her or maintenance for her children. Worst of all, her children become illegitimate in law and, as at present, their only right against their father is that of maintenance under an affiliation order. From the father's point of view in a nullity, he loses all rights of guardianship of his children and is reduced to a fairly minimum statutory right to apply for custody or access under the Guardianship of Infants Act.

To sum up, in return for the boon of getting out of an impossible and unsustainable relationship through nullity, the wife is reduced to the position of an unmarried mother of illegitimate children. I am well aware that the Government propose to change this position of illegitimate children in the Status of Children Bill. But I am also aware that many of the people who are propounding nullity as the desirable alternative are precisely the same people who have grave doubts about the Government's wisdom in introducing the Status of Children Bill. I also would point out that, even if the Status of Children Bill mends the situation as regards the children of a nullity, it does not affect the position of a wife. Then we may look, perhaps, to the proposals of the Law Reform Commission again on the law of nullity.

Before referring to that, I find it difficult to accept as a lawyer that one can extend special protections to an unmarried family which is the result of a nullity decree which would not be extended to an unmarried family of any other sort, that is, people who are cohabiting or whatever. Surely the clauses against discrimination in the Constitution would prevent one from granting to one unmarried spouse, if I might put it that way, what one then refused to another unmarried spouse. I feel sure that many of the anti-divorce brigade would hold up their hands in horror at the idea of providing [1756] for all unmarried women who happen to live with men that they should have virtually the same rights as a wife.

When one looks at this it is a little bit more complicated. One cannot just say that we will fix the law of nullity. In my opinion we cannot just fix it by saying: “With the law of nullity we will grant all these other things.” Even if one looks at the proposals of the Law Reform Commission on nullity which is Law Reform Commission 9 published in 1984, from page 173 onwards, they propose the possibility of granting financial orders under a decree. Strange though it may seem, the proposals they make on financial orders are virtually the same as the proposals the Government are making in regard to divorce: that property may be transferred, that maintenance may be granted and so on. When we turn to Succession Act rights they suggest at page 175 on the question of succession rights of the parties to a void marriage or a voidable marriage that has been annulled:

We consider that the best approach would be for the legislation not to create any succession rights. The court in making financial orders at the time it makes a decree of nullity will, of course, do so on the basis that no succession rights will accrue to either party.

This proposal is in line with the proposal made in relation to legal separations in the report on divorce a mensa et toro and related matters. Again, I feel sure that Mr. Binchy had a strong hand in the nullity report too.

An Cathaoirleach:The Senator is not too kind to Mr. Binchy, I think.

Mrs. McGuinness:He is not too kind to me either, I can assure you.

Mr. O'Leary:The Senator is entitled to comment.

An Cathaoirleach:You were not here when other references were made earlier.

[1757]Mrs. McGuinness:I have to say in my own defence about this that, although I may be seeming to be unkind, this particular man has put himself forward and has been put forward as the be-all and end-all of legal opinion against the Government's proposals. I feel that, as he has put himself forward in such a public way, it is his hard luck if other people oppose him. The report on nullity is definitely making the same kind of provision as the Government are proposing for divorce. This is to improve the present position with regard to nullity. When we look at this next question of the succession rights of the first family we find that, first of all, they are normally done away with by agreement at present.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mrs. McGuinness:Before the lunch break I had finished my remarks about the question of nullity and about the possibility of nullity as a viable alternative. I will sum them up by saying that as far as I am concerned the Government are right in regarding divorce as the proper way of dealing with this situation and in not accepting the possibility of nullity as a viable alternative.

Apart from the practical difficulties which I have outlined, the idea of putting people who have been married for 15 or 20 years with children in the position of trying to prove that their marriage never existed seems to me to be casuistry bordering on hypocrisy. The other issue with regard to dangers to which I would like to refer is the way in which we talk about children suffering in a divorce situation. This is something other speakers have dealt with. All the research shows that children suffer in this situation. I would accept that children suffer in marriage breakdown and in situations where their parents separate. None of this research differentiates in any way between the situation where parents separate or where they get a decree of divorce a mensa et thoro and the situation where [1758] they get a full legal divorce. If there are children in a situation where a decree of nullity is granted, they would suffer the more because not only would they suffer from legal disabilities but they would also suffer from trying to absorb the situation that their parents' marriage had never existed, which seems a much more difficult situation to absorb than the situation where their parents marriage has broken down. The logic of the situation and the experience is that children undoubtedly suffer in conditions of marriage breakdown. They suffer from the conflict which comes before the marriage breakdown. It is that situation which causes suffering. It is not whether we call it divorce a mensa et toro, divorce, nullity or an action under the Guardianship of Infants Act. In our efforts to protect children we have to face up to that fact, and to accept that we can protect children just as well in a divorce situation as we can protect them in the present situation of marriage breakdown. The proposed amendment, with its specific guarantees for both the dependent children of the marriage and children who are dependent on either of the spouses, even if they are not children of the marriage, is an improvement on the present situation. Any present constitutional rights of children have not cut them off from the suffering of the reality of marriage breakdown.

Senator Brendan Ryan is going to go further into this situation. Therefore, I will not deal with it in any great detail.

I would refer briefly to the remarks Senator Ross made in regard to Northern Ireland and to the remarks which were made by Senator Honan in her contribution. Senator Honan, I accept, is always completely sincere in what she says. I have great admiration for her but when she said that people have been saying that if we bring in divorce it will unite Ireland tomorrow, I have to say that that is a complete distortion of what Senator Ross said or that any of the other Senators said. Nobody is suggesting that by bringing in a law allowing for divorce we will make the Unionists of Northern Ireland accept our society and will create a situation of galloping Irish unity. It [1759] definitely will make a difference in our relations with people in Northern Ireland if this amendment is defeated. It will definitely reinforce their view that this is a society where home rule is Rome rule, however mistaken it may be. It will reinforce their view that this is a society which is not capable of accepting the type of enlightened pluralism which was so well described by Senator Dooge. I would say to Senator Honan that it is this way that one must look at it, not in the way that it will bring about unity tomorrow, but that it will put off unity to a much further degree if we fail to take this step.

Finally, I would refer the Seanad to the arguments that were put forward by the Joint Committee on Marriage Breakdown on behalf of the necessity to bring in a law providing for divorce. These were set out in chapter 7 of the committee's report, from page 75 onwards. I have already taken up sufficient of the Seanad's time without going into these in detail but I would ask Senators to refer to that chapter and the arguments therein, which suggest that the prohibition on divorce is an injustice to those persons whose marriages have irretrievably broken down and who have become or wish to become involved in other relationships. These arguments also suggest that all the minority churches and religions, with the exception of the Church of the Latter Day Saints, do not say that their intention is a blanket prohibition on divorce. All these people are also citizens of this country. Furthermore, they suggest that the breakdown of a marriage is due to the collapse of a relationship between the parties and that divorce does not cause that collapse but merely affords the facility to give legal recognition to the fact that a marriage has ended, and that to deny the right to remarry to a battered wife or husband has no social advantage to the State and is, in fact, detrimental to society and lacking in compassion. As I have already said, it is the factual breakdown of a marriage and not the availability of divorce that has an adverse effect on children. These arguments are set out [1760] in more detail by the committee in chapter 7 of their report, and not only Members of the Seanad but members of the public also should read and study these arguments.

I will end by quoting from the Church of Ireland delegation to the Joint Committee on Marriage Breakdown. While the Church of Ireland delegation led by the then Bishop of Limerick, who is now the Bishop of Meath and Kildare, Dr. Empey, stressed the commitment, in common with the Roman Catholic Church, to lifelong marriage and stressed the fact that within the Church of Ireland “We, too, do not remarry persons who have obtained a divorce decree”, they, nevertheless, said that the demands of social order and the demands of the common good made it necessary for a law providing for divorce to be enforced. On their view of divorce they stated:

If our concern is for the stability and the maintenance of marriage then any system of divorce should be based on a consideration of the whole state of the relationship between the partners, and in particular whether there is any prospect of that relationship being revived or rehabilitated and thus being preserved. Divorce on a breakdown basis involves the view of marriage as a living relationship which may die. It is only open to the courts to declare the marriage dissolved when they are satisfied beyond reasonable doubt that the relationship is in fact dead. This is a view of marriage and of divorce which many people would accept and which, we would suggest, is a perfectly reasonable and socially moral view for any human law to take. Whether it is the view which any branch of the Christian Church would take is another question altogether. We recommend, therefore, that a form of divorce be introduced based on the irretrievable breakdown of the marriage. We regard divorce as preferable to nullity in that it avoids the double think which is inseparable from the nullity concept. It recognises that marriage is a human relationship with a potential for growth and for [1761] development. If based on breakdown, it reflects closely, and perhaps even accurately a view of marriage which people actually hold. Finally, in bringing the marriage to an end it depends, not on some imaginated defect or some kind of diminished responsibility, but on a due and logical regard for the empirical state of affairs. We would, however, recommend that any such law should contain safeguards; first, to ensure that all feasible attempts at reconciliation have been or can be made; second, that the procedures adopted should be so devised as to ensure, by the provision of conciliation machinery that proceedings can be disposed of with the minimum of bitterness and acrimony; and last, but definitely not least, that the maximum powers for the protection of the children are available to the courts.

That statement is quite an accurate reflection of the proposals which the Government intend to bring in as indicated both by the Bill and by the statement of intent. The Bill and the statement of intent meet those criteria and they are the right criteria and I am pleased to support the Bill.

Mrs. Rogers:The absence of actual statistics about the proportion of marriages which break down makes it impossible to quantify accurately the scale of the problem. Nevertheless the deliberations and subsequent report of the Oireachtas Joint Committee on Marriage Breakdown suggest quite clearly that it is a problem which affects a substantial and growing number of people. It is also a problem which causes immense personal anguish and suffering to spouses and children. I therefore welcome the proposals in the Government's statement of intent which are aimed at alleviating in so far as is possible the trauma attached to the legal proceedings in cases of judicial separation; the establishment of a family court with cases heard in camera in a less confrontational and less formal manner. The emphasis on attempted reconciliation where possible, and conciliation services in the event of separation should [1762] certainly ease the pain caused by the breakdown of marriage and enhance the chances of reconciliation. I would urge that judges especially assigned to the family court should receive training in psychological and social as well as legal aspects of dealing with family cases.

I am particularly pleased to note that consideration is to be given to the Joint Oireachtas Committee's recommendation that a dependent spouse should not be prejudiced in any determination of property rights by virtue of the fact that he or she gave up employment in the course of the marriage to attend to duties in the home. The lack of satisfactory legislation in this area has been a source of great injustice, particularly to women. When one looks at the clause in the Constitution which talks of the importance of women in the home, it is difficult to understand why, until now, what particular constitutional fact has not been reflected in the laws of the State, because it most certainly has not. The commitment to increase the minimum age for marriage to 18 and to make a minimum period of notice of marriage obligatory is also to be welcomed.

May I urge the Minister to ensure that the proposed reforms put forward by the Government in this area be carried out urgently whether or not the referendum succeeds.

The present debate is an important one. It is therefore crucial that all aspects of the proposed constitutional change and subsequent legislation should be understood. The Government should clarify for the people — in so far as possible — the type of legislation envisaged and its implications. For instance, it must be clarified that the first wife — or for that matter the husband, as may well be the case and who has been very largely ignored in this whole debate — at the time of divorce is allocated her or his share of the family possessions. It must also be clearly spelt out that the children of the first marriage continue to enjoy their natural right to succession and will share and share alike with any other children of a subsequent marriage. On this whole issue, of course, it should be borne in [1763] mind that, with the proposed abolition of the status of illegitimacy, a long overdue reform in the interest of natural justice to innocent children, all children will enjoy succession rights.

Legislative reforms in the area of judicial separation or new legislation for divorce are issues which do not impinge on the personal lives of a very considerable section of the Irish population. For most people it is not a problem which they see as having any bearing on their own welfare. It will not affect them in any way in their everyday lives. Many may not truly appreciate, as do those who are familiar with the problem and have studied it in depth, the extent of suffering being caused to a minority of people who are caught in the present circumstances in a legal limbo. Many will therefore base their attitude to the referendum on their perception of the possible social and moral implications of the introduction of divorce legislation.

It is of the utmost importance that all aspects be rationally teased out and above all, that the distinction be clearly made between one's own personal moral or religious convinctions on the indissolubility of marriage and the legislative reguirements and rights of a minority with a different viewpoint. Senator Dooge dealt in some detail with this aspect of people's attitude to the referendum. I do not intend to repeat what he said except to underline the necessity to make that distinction.

There is understandable concern — shared undoubtedly by all Members of the House — that any change in the law should not lead to a compounding of the marriage breakdown problem and have a destabilising effect on otherwise relatively stable marriages. The majority of us in this House have a deep commitment and attachment to the concept of the family as the basis of a stable society. The experience in other countries in this regard can produce a frightening scenario. However, I do not think that comparisons with countries which have a totally different culture and ethos are valid. Looking at those countries which [1764] have the most liberal divorce laws it seems to be a case of the law reflecting rather than influencing social custom.

The most obviously appropriate jurisdiction for comparative purposes in order to assess the possible consequences of divorce legislation is Northern Ireland which has a similar ethos and culture with regard to marriage and the family to that of this part of Ireland. I have to say in all honesty that I can see no difference in the respect for family as the basis of society and no difference in the stability of marriages between North and South. In Northern Ireland as in the Republic, there is a worrying increase in the rate of marriage breakdown particularly among those who enter into marriage at a very young age. There is the added problem created by the tensions of the last 15 years and the considerable strain placed on spouses and families as a result of long prison sentences.

Generally speaking however, there is no indication that those who for religious and moral reasons enter into marriage as a commitment for life have their convictions weakened in any way by the availability of legislation for the dissolution of marriage. Indeed, many Catholics and Protestants would be distressed by any suggestion that their deeply held convictions would be lessened by the fact that they live in a divorce jurisdiction. A case in point is the very substantial disparity between Northern Ireland and England and Wales at a time when the divorce laws in the two jurisdictions were exactly the same. I am referring to 1969 and 1970. In 1969 the ratio of divorce petitions in England and Wales was one in six marriages; in Northern Ireland it was one in 29. In 1970 it was still one in six in England and Wales. It was one in 32 in Northern Ireland.

Further evidence of the disparity between Britain and Northern Ireland, despite the similarity of the divorce laws can be found in the Northern Ireland Economic Council's Report on Demographic Trends in Northern Ireland published as recently as April 1986.

In section 4, which deals with marital status and nuptiality several factors, [1765] based on statistical analysis, emerge — factors which are highly relevant for the purposes of the present debate.

The divorce rate in Northern Ireland is still much lower than in Great Britain. It has increased sharply between 1971 and 1981. An examination of trends in this part of Ireland will show an equal increase in marriage breakdown and the setting up of illegal second unions in the same period. Another trend which has similarities with this jurisdiction is that a lower proportion of young adults under the age of 25 were married in 1981 than in 1971. That is a worrying aspect of modern living for many of us which has implications for the family. The North being a divorce jurisdiction and the South a no divorce jurisdiction the similarity of trends must flow, not from legislation but from the changing nature of society, North and South.

As I have already stated, the analysis does show the wide disparity between trends in Northern Ireland and Great Britain despite the availability of broadly similar divorce legislation. It is notable that any differences — and there are differences of detail — which have existed in divorce legislation between Northern Ireland and Britain are there and have been there because of resistance to liberalisation by the people of Northern Ireland themselves, based on their different ethos and view of marriage and the family. As I have previously stated it is an ethos much closer to that of the rest of Ireland.

Extracts from the Northern Ireland's Economic Council's Report which bring out very clearly the disparity between Northern Ireland and Britain are worth quoting and indicate the same attitude to marriage as we would see and accept in this part of the island. In section 4.1 the report states:

The composition of the population of Northern Ireland by marital status differs from that of Great Britain. Lower proportions of the adult population are married and divorced in Northern Ireland and a higher proportion remain single throughout their life. In [1766] this we are witnessing a faint echo from the past of what has been termed the “Irish marriage pattern” characterised by a high rate of permanent celibacy and delayed marriage. Additionally, the rate of remarriage is substantially lower because of the comparatively low incidence of divorce. But these differences are less marked now than they were 20 and more years ago because of the large decrease in the prevalence of celibacy in Northern Ireland and because of the marked decline in the popularity of marriage among young adults in Great Britain over the last decade. It is only with regard to the proportions remarried and divorced that the gap remains wide.

At the end of section 4.4 the report states:

Northern Ireland remarriage rates, however, are still less than one half the level recorded in Great Britain.

And again in section 4.6 it states:

The low remarriage rate, on the other hand, must be associated with the low incidence of divorce in Northern Ireland especially of Roman Catholics.

I quote again:

The low remarriage rate, on the other hand, must be associated with the low incidence of divorce in Northern Ireland, expecially of Roman Catholics.

I think those facts make the point that I was referring to earlier on that people's attitude to the availability of divorce legislation and whether or not they want to avail of it themselves is decided not by the fact that the legislation is there but absolutely by their own religious and moral convictions. In attempting to assess the possible implications of new legislation the fact must be taken into account that the increased rate of marriage breakdown and the establishment of second relationships involving, as it now does in this part of the country, not just illegitimate children but illegitimate spouses and illegitimate families, has come about in a no divorce jurisdiction.

[1767] I will now turn to the present realities in this part of Ireland by quoting what I consider to be a very important statement from the report of the Oireachtas Joint Committee on Marriage Breakdown. On page 85, chapter 7, it states:

The committee feels that it is inevitable in the context of the retention of the current constitutional position in relation to divorce that many adults whose marriages have irretrievably broken down will form stable permanent relationships and the children of such relationships will continue to lack any adequate legal status and protection.

In the paragraph preceding that statement, the report states:

It is the view of the committee that simple legislative reforms cannot adequately solve the problems at present experienced by parties to a relationship, one or both of whom is still legally married to another person.

That is the reality of the problem which has to be faced by the legislators. It might be easier to run away from it. It might be earier to pretend it is not there. But the responsibility of legislators is to give the protection of the law to the citizens of the State and therefore they have to deal with the reality facing them today in the situation with regard to broken marriages.

There is agreement in the report I have just quoted that simple legislative reforms will fail to deal with that reality. I would respectfully suggest that in this very complex and emotional area it is not sufficient to introduce inadequate legislation as a sort of a patching up exercise to suit one particular aspect of the present difficulties, legislation which would only accommodate one section of our society. Such legislation has been suggested by certain sections who oppose the introduction of divorce. A further problem with this particular remedy is that in present circumstances, if the first marriage is [1768] deemed never to have existed, then clearly the spouse and children of that particular union will have no inheritance rights whatsoever. Senator McGuinness has dealt in detail with this area and has rightly pointed out further on in her speech to the Seanad that the possible financial consequences resulting from divorce apply equally to judicial separation. Clearly in a case of separation, as in the case of divorce, the spouse who is supporting the other spouse is going to have to set up another home or look after himself separately. So it is going to lead to a certain amount of financial hardship.

It needs to be recognised that the present situation stems from changes in the nature of society, changes which I deeply regret. I know that in expressing such regret I speak for everybody in this House. Those changes, nevertheless, exist, will continue to exist and, sadly, may continue to grow. The changes have been brought about by a combination of factors, factors related to modern living, with its faster pace and emphasis on materialism; influences from abroad where standards are different; unprecedented exposure to other cultures and values; in particular a changing perception by the individual of the importance of a need for self-esteem and fulfilment and the changing and difficult economic conditions which harshly affect the structures of the family. The reality of the present unhappy situation is that there exists in Ireland a substantial number of people whose marriages have irretrievably broken down, many have entered into second relationships, others have not but wish to have the legal right to do so in keeping with their own moral views. Legislators can no longer ignore the implications for society of continued failure to provide adequate legal protection for a minority or people. It is necessary that the proposed amendment to the Constitution should be approved by the electorate in order to enable the legislators to carry out their responsibilities to all the people.

The nature of the legislation envisaged needs to be spelt out very clearly and the genuine concerns or ordinary people met. [1769] The broad requirements for the necessary legislation were put succinctly by Dr. Jack Dominian in his oral submission to the Oireachtas Joint Committee when he stated:

You have an opportunity here perhaps to make something in this country which both legislates for justice and also allows the country the benefit of enhancing prevention.

Finally, may I say quite simply that I am opposed to a legislative situation which fails to accommodate the rights and wishes of a substantial minority of people in Ireland.

Professor Hillery:The breakdown and break-up of marriages force us to examine contemporary marriage. Marriage reflects what is happening in people and life generally and so is influenced by social instability; uncertainty about values; the search for intimacy without the knowledge of the means to obtain it; the changing status of women; the threat for men of entering the world of feelings, and many other factors. Marriage changes as people change. Traditionally, permanence in marriage was supposed to result from the actual state of marriage itself rather than from the strength and closeness of the bond. Nowadays, however marriage is less likely to survive without a satisfactory relationship. In other words, the inner bond of love is more important than the outer bond of law.

In the course of this contribution, I wish to focus on three areas. First, the likelihood that many wives in a matrimonial breakdown situation will be worse off financially in the future than they are now, if the amendment to the Constitution is carried. Secondly, I want to refer to the novel feature of the divorce proposals in that they could mean that a person could secure a divorce by relying on his or her own matrimonial misconduct. Thirdly, irrespective of the outcome of the referendum, the present legal system for resolving family law disputes is intrinsically inappropriate and is in need of radical reform.

[1770] Taking my first point, it is a matter of fact that most married women are not financially independent in this country. I would argue that if the divorce proposals are enacted, many wives in a matrimonial breakdown situation will be worse off in the future than they would be under present conditions. In particular, the traditional Irish housewife, who is of a conservative frame of mind, religious, loyal to her husband and financially dependent on him, will in most cases, be worse off.

Take the case, for example, of the traditional Irish housewife who is deserted by her husband, who in turn goes off to live with another woman. If the husband does not properly maintain his wife, the wife can apply to court for a maintenance order. When the court is determining how much money the husband should pay to his wife in respect of maintenance, the court will not take into consideration any money which the husband needs or uses to support his girlfriend. At present, a husband in this situation has no legal obligation to maintain his girlfriend or common law wife, though he does have an obligation to maintain any children she may have by him.

If, however, the husband obtains a divorce in respect of his first marriage, and marries his girlfriend, he will then have a legal obligation to maintain his girlfriend, that is, his second wife. Therefore, when his first wife applies for maintenance, the court, when determining how much maintenance he should pay to his first wife, would have to take into consideration how much he needs to support his second wife as well. The proposed amendment to the Constitution does stipulate that the court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse or for any children or any child who is dependant on either spouse.

This stipulation, however, raises many questions. If the court rigidly interprets “adequate and proper provision” then will it be possible generally to obtain a divorce or will it result in divorce being available only to the rich? Almost every divorce would result in some sort of drop [1771] in the overall standard of living. If there is not enough to go around, will the State, the taxpayer, provide social welfare assistance to the parties in a divorce case? If so, what will be the Government's attitude to this further expenditure and where will the money come from?

The second point I want to refer to is the novel, perhaps unique, feature of the divorce proposals before us, that is, that a person could obtain a divorce by relying on his or her own matrimonial misconduct. One of the new grounds for a judicial separation is that of three years separation. If, as in the case I have just mentioned, a husband deserts his wife in order to live with his girlfriend he could, after a period of three years, be entitled to a judicial separation, and after another two years, he could be entitled to a divorce. Again, this could result in great hardship, financial and otherwise, especially in the case of a wife who believes in remaining faithful to her spouse. This would introduce a new concept whereby a person would be entitled to a legal remedy by virtue of being in breach of the terms of the marriage contract with his wife. The law, after all, still regards marriage as a contract between two people and the fundamental term of the contract is for both parties to actually live together.

The third area I want to refer to is the inappropriateness of the legal system as it now stands for handling family law disputes. Irrespective of the outcome of the referendum, the present legal system for resolving family law disputes is in need of radical change. The most important aspect of family law is not so much the remedies which might be available to a party, but rather the procedures which a party, has to go through in order to obtain a remedy.

Many litigants who have gone through the legal process and who have obtained a remedy, report that the experience was so harrowing that they would not have gone to court in the first instance if they knew what they would have to endure emotionally. Litigants in family law cases are, to a great extent, in a category of [1772] their own because unlike other litigants, they must continue a relationship with each other after the court hearings have concluded. While their own personal matrimonial relationship may be over for good they, nonetheless, have to relate to each other over children, property, relatives, friends and so forth, before the terms of custody of the children are decided. It is essential that material matters like money and maintenance are first settled. Otherwise, children may become part of the division of spoils. Unfortunately, this does sometimes happen. The present family law procedures can only exacerbate the conflict and tensions that exist between the parties in dispute, with further adverse consequences for the children involved.

Today's Irish Independent gave considerable coverage in relation to the divorce debate. In an earlier issue of the same paper, Thursday, 24 April, 1986, Jenny Bannister's “American Dairy” had a piece entitled “Children the losers as parents battle for custody”. We are in a situation where the referendum has not yet been decided. But I do want to make the point about how children can be devastated in certain situations. The article reads as follows:

More child custody cases are being fought in the US today than ever before — and the children are the victims.

She then goes on to quote a child custody expert:

Custody battles tend to scar the children because parents wage them to hurt each other rather than to ensure the child's best interests. Many men win custody even though they raise the issue only to punish the mother psychologically, or as a bargaining tool.

I have introduced this extract as a red light in relation to what can happen to children. The situation is not quite so bad here as that described in the article. Nonetheless, great caution is required in relation to the consequences for children of family disputes.

It is true, and credit must be given, that since 1980 two significant changes [1773] have occurred in the administration of family law. In 1980, the State Civil Aid Advice Scheme came into operation and in May 1982 the Courts Act, 1981, came into operation. Both of these reforms were designed to make the courts more accessible to the community at large and, in particular, to the less well off. While the intention behind these reforms could be described as admirable and progressive, it should be appreciated that these reforms were introduced on the assumption that access to court is synonomous with access to justice. Perhaps this is false assumption, a myth which needs to be exploded.

It must be said, however, that since 1980 there has been an enormous increase in family law litigation, brought about or facilitated by these reforms. Many litigants have obtained much needed protection from the courts in the forms of barring orders, maintenance orders, custody orders, and so on. Many of these litigants would be far worse off were it not for the relatively easy availability of these remedies. At the same time, however, one must examine the procedures involved in the litigation and the effects these procedures have on the individuals in dispute, on their families and on society as a whole.

The social and psychological effects of an individual going to court cannot be underestimated. It is unpleasant enough for a person to litigate on an ordinary matter, for example a claim for compensation, but to litigate over a family matter is perhaps one of the most emotionally painful experiences one could endure. A litigant in a family matter is usually experiencing the most emotional crisis of his or her life and the procedures that have to be gone through in order to obtain a legal remedy should be designed to minimise the emotional trauma and the problems caused by the present legal procedures.

Irrespective of the outcome of the referendum, one must give a qualified welcome to the statement on the Government's intentions with regard to marriage, separation and divorce. This statement includes proposed changes in [1774] legal procedures for separation etc., and in particular the role of mediation services and reconciliation services. The official statement we have received refers to setting up a family court which will be part of the Circuit Court. Even though the statement says that procedures will be less formal and less confrontational it will still be a court of law, dominated by the law and the legal profession. I urge that what is really needed is a genuine family tribunal which would be inquisitorial in nature rather than confrontational or adversarial, and administered by a panel of people who would have a mixture of backgrounds, for example, in social sciences, medicine and law. Perhaps what is really needed is a completely new framework for resolving family disputes, separate and independent from the judiciary, where the law and the legal profession play a secondary role as in the case of labour/management disputes.

In conclusion, I feel that a family tribunal could have attached to it the conciliation and reconciliation services outlined in the Government's statement together with various other services which would be conducive to solving the problems encountered in matrimonial disputes.

Mr. O'Mahony:I do not propose to deal with the sociological issues surrounding the question of divorce. These have been dealt with very adequately by, of the contributions I have heard, Senator McGuinness and, I am sure, by other Senators as well. Instead, I would like to confine myself to two issues both of which were raised by the Catholic bishops in their recent statement on Marriage, the Family and Divorce. It seems that we would be remiss as legislators were we to avoid offering a considered response to the Catholic bishop's views as expressed on these two matters, since they seem to represent the core of that Church's position on the Bill before us. I offer my response in a non-confrontational manner in the interest, hopefully, of helping towards greater clarity and, indeed, because I am a member of the Church concerned and, as such, am motivated by feelings of fraternity as well as by a desire [1775] to point to what I consider to be misunderstandings on the part of the Church authorities on the matters to which I refer.

In their statement the bishops say:

We do not ask the Catholic doctrine as such, be enshrined in law. Nevertheless, we have the responsibility as pastors to offer moral guidance to Catholics to help them to form their consciences in respect of their moral responsibility as legislators and as voters.

It seems that this statement contains a number of questionable elements. A reasonable interpretation of the statement which I have just quoted would suggest, first of all, that the bishops are in fact asking that Catholic legislators and voters enshrine Catholic doctrine in law. At the very least they appear to be suggesting that on this issue Catholic doctrine and a moral position are synonymous and that legislators and voters must act accordingly. I do not believe that legislators can be expected to accept either of these suggestions.

We now understand clearly in this society, given its composition, that the secular law should not reflect the doctrine of one Church, as the bishops appear to imply on this issue. It must be made for all citizens including non-believers, since it does not require religious belief as a condition of citizenship and it exacts compliance from the religious and the irreligious alike. In the words of Lord Devlin, in his very significant lecture on morals and the law of marriage in 1963 in the UK:

What the law has to assist are the moral ideas of the good man who is free to think as he likes.

Like Devlin, I believe that, fundamentally, the Christian idea of marriage does commend itself to such a man, but that is an entirely different matter to suggesting that it must commend itself to him.

I cannot accept either that Catholic doctrine and morality are one and the same on this issue. As Lord Devlin says, [1776] until a few centuries ago in the UK and more recently in this country, the moral as well as the religious idea of Christian marriage was that it was indissoluble. Indeed, the idea that there might be a moral concept of marriage to be contrasted with the religious one would have been incomprehensible to people in both countries in the relative times I have mentioned. There are still, indeed, many Christians who regard marriage as absolutely indissoluble — and for those who are Roman Catholic, as a matter of Catholic doctine they are right. But if they seek to retain that idea in the basic law of the land they will have to rely on a particular version of Christian doctrine and not upon morals, as the bishops appear to imply. In my view it is no longer thought in this country to be morally wrong that a marriage should be dissolved in limited circumstances as set out in this Bill, although it would remain doctrinally wrong for some Christians, specifically Catholics. Indeed, I would go further and say that in my view an unqualified insistence on the indissolubility of marriage is itself morally wrong. There is no moral justification for denying to a person whose religious beliefs condone it, the fulfillment of a second union where the first one has failed irretrieveably. Further, no good social purpose is served by outlowing a sincere union of that sort.

I believe that this latter point is widely recognised in our society now. What people want and what the common good requires is a measure which strikes a balance between respect and support for the institution of marriage and a recognition that it is not in the public interest to insist on the maintenance of a union which is broken down beyond any possibility of repair. I believe that this balance is struck in the present Bill, when combined with the other legal and administrative measures proposed by the Government.

In the course of their recent statement the Catholic bishops also said:

One cannot impose virtue by law, yet one can impose conditions unfavourable to virtue. Certain kinds [1777] of law make virtue more difficult and non-virtue more likely.

By “virtue” in this case the bishops are, of course, referring to the virtue of sustaining a single marriage until the death of one or other partner. The bishops are right to say that the law cannot make people virtuous. We know this intuitively and from experience. The bishops are right, too, when they say that the law can on occasion discourage virtue or make it more difficult. It seems that this does not take us very far in dealing with the Bill before us. Were we talking about divorce on demand or quick divorces, then this argument would have to be taken very seriously indeed. It could then reasonably be argued that such a measure discouraged virtue and as such was wrong. The present Bill, which provides for a five year waiting period prior to dissolution of marriage and for marriage support and reconciliation services, cannot, I believe, be said to discourage virtue in the manner suggested by the bishops.

What this Bill proposes is to regulate the position of those whose marriages have broken down irretrievably, whether or not those marriages break down through an absence of virtue, and frequently marriages break down despite the most virtuous efforts of the spouses concerned. The breakdown cannot be blamed on the state of the law. Indeed, I would go further to suggest that the absence of virtue in other areas of law, notably in our economic and education laws, contributes far more to marriage breakdown than could possibly be the case in the measure now proposed. It seems that the virtuous society, as indeed the virtuous individual, is one with respect for truthfulness and fairness. The truth is that marriages frequently do break down irretrievably despite the best efforts of the persons concerned. Fairness requires of us that we allow such individuals, in circumstances limited in a manner which takes account of the value of marriage as a social institution, to regulate their position and to have a second legal union if they so wish. That, [1778] it seems to me, is what virtue requires of us as legislators.

Finally, I would like to offer a quote from that article by Lord Devlin that I mentioned earlier, because it is on interest and of value. He says at the end of that lecture:

The idea that marriage and divorce should be dealt with by the law as if they were matters without religious significance is, I know, distressing to many good people. To my mind the time has come for a clean break and both the Church and the law would be stronger for it. The mingling of the spiritual and the temporal jurisdictions has been good for neither. The breakup of the coalition need not destroy an alliance in which both parties, following different principles, are working for the same end — the moral good of the community. It is in this way, it is now recognised, rather than by the assimilation of doctrine, that divisions within Christiandom can best be remedied. The law, which knows nothing of such divisions, should know nothing either of the gap that divides the good Christian from the good Agnostic. It must be wide enough to express the moral ideas of both.

Mrs. McAuliffe-Ennis:This constitutional amendment was introduced as an attempt to deal with the fact that many people in this country are in the awful position of marital breakdown without any legal recognition of that fact and without the legal right to remarry. What has happened is that thousands of people have decided to end their relationship in various ways. Some just up and leave, and these circumstances we call desertion. Some arrange for themselves legal separations; others arrange for foreign divorces; and some arrange Church annulments. There are then the very few who avail of State annulments.

In order, perhaps, to bring this debate, which is now highly divisive back down to a reasonable level, I want to clarify [1779] exactly what happens in those circumstances. In cases of desertion, the deserted spouse is left to carry the full financial brunt of the house, the family and their wellbeing. The remaining spouse is also left to carry the full brunt of responsibility of looking after the moral, educational welfare of any family. In cases where the income is inadequate to support that family, then and only then does the social welfare system come into use. In these cases there is rarely, for those on low incomes or even those on social wefare incomes alone, any legal intervention for the harsh economic reason that they cannot afford legal assistance and are very often means tested under the civil legal aid scheme.

Some weeks ago I discussed this matter with the Minister and I stressed the very urgent need for the repeal of the means test so that people in those circumstances will have access to protect themselves and their children with the full weight of the law behind them. As a consequence, the deserted spouse has no legal means to establish his or her rights to custody, to ownership, and so on. They have no means to establish in reality the constitutional protection. In cases of legal separation, whether by agreement or through the courts with legal advice and aid, the position of both spouses and the children is clarified, generally to the wellbeing of the children and to the mutual agreement and benefit of both. Such issues as the family home, the education and welfare of the children, succession rights, and so on, are clearly and plainly spelled out to the satisfaction of both. In other words, the full skill of legal assistance is there to protect the priority areas. In many cases, and where a new family home is being provided for the spouse and children, that spouse signs away his or her rights only to any property of the other spouse. The foreign divorce situation, on the other hand, occurs under varying circumstances, some following desertion and some by agreement. The situation pertains, as I have outlined, in cases of desertion or legal separation.

[1780] Under Church annulments the marriage is deemed not to have taken place. As a result, there is no requirement on either spouse to fulfill their responsibilities, legal or moral to the other or to the children. The reality, under those circumstances, is that both spouses were never married and their children are illegitimate and merely the issue of an illicit relationship. What a cruel, strange unchristian way to treat and classify men, women and children. In effect, where there is provision in and use of civil legal proceeding, the spouse and children fare out well. Where there are no legal procedures, they do not, as in the case of desertion and as in the case exemplified under Church annulments. Following this people are then basically left to trundle along or develop another new illicit relationship under our laws into which children are born and deemed to be illegetimate. There are thousands of such couples and thousands of such children. The time has come to regulate that fact in the eyes of the law. Circumstances and facts have left the law outdated and not relevant to the present and, therefore, have brought it into disrepute.

These various options, desertion, annulment, and so on, occur because marriages have already broken down. They do not cause marriages to break down. They are a consequence of breakdown. Civil divorce will be another option allowing the right to remarry and, as is the case with the other options, will come about as a consequence of marriage breakdown, and not as a cause. There is an argument that says that the commitment to marriage will be undermined. How will the commitment to marriage be undermined? Every happily married person stays married because the commitment made by them on marriage has been adhered to and strengthened. Divorce, separation, annulment, and so on, are not an issue for those people. However, one partner may not adhere to the commitment and separation is an issue potentially. Whether it is desertion, legal separation, annulment, or divorce, these are possible legal definitions under [1781] which people wish to classify themselves and only come into play after the fact.

Where another relationship follows these events, they are marriages in everything but name and various titles. They are called illicit or second relationships, common law, or marriages following an annulment. The divorce legislation will permit the fact that these marriages in everything but name will be legally called and defined as marriages. I take strong objection to the scaremongering going around in relation to the introduction of civil divorce. People are being threatened with horrific statements that the second relationship will supercede the first. This will not happen. Is it not clear from the wording that the opposite will be the case? Is it not clear that where under existing law legal procedures are used the first family are catered for properly? Is it not clear that this protection which already exists is to be strengthened, and given the greatest protection possible, by inclusion in the Constitution? In this, and by the terms of the wording, divorce laws in Ireland will be unique for, unlike any other country, the welfare of the spouse and children following the breakdown of the marriage will have constitutional protection. This will provide for those who have no protection as is the case in cases of desertion and Church annulments.

Other marriages occur which are highly likely to fail right from the beginning. Yet there seems to be no protest, even a whimper from the alleged great family protectors. These marriages as the result of pregnancy and other pressures are often a recipe for disaster. Marriages which proceed where violence, excessive drinking, gambling, and so on, occur before the marriage are often, too, a recipe for disaster. Who warns such couples? Who tells the blunt truth that, while Cinderella lived happily ever after, she had the money and luxury, and the loving care of a hero, while most in this category do not. Who tells the young woman or man: “You will not change him or her after the marriage.” Who tells them that if she or he drinks or gambles excessively, or is violent, or is unfaithful, that this will almost certainly continue and, in fact, get [1782] worse because of pressures? Who tells the young starry-eyed couple the harsh and blunt difficulty of trying to house themselves or service a mortgage? Who tells them that babies, while angels, as a rule can often be little monsters if they do not comply with the notion of feed, play, sleep?

These unfortunate people are not aware that, while the garden may be rosy, rose bushes can be very thorny indeed and, unless aware of that fact, they and their children can be and often are hurt. These marriages are marriages where breakdown is an issue from the beginning. The commitment, while it may be idealistic, is not based on the full realisation of what the situation is, and is thereby undermined. It is not divorce, or any other separation procedure, which will undermine the commitment. It is the fact that, as a result of the commitment itself being undermined or being faulty, divorce will occur.

There are many who do — and many more will — whisper and insinuate that the economy will suffer. There is some validity in this argument. I do not believe it is sufficiently strong in the face of the human trauma and the human need to seek legal and constitutional protection following marriage breakdown.

This debate has tended to be somewhat legalistic. The human element has been left behind particularly by Opposition speakers. I pose the question to them: “What right have you to say to a man or a woman, yes, let the marriage break down, but we will not allow you constitutional protection, nor will we allow you to do anything in terms of your potential new relationship except live together and be the subject of the worst class of mongers let loose at the bar counter. I say to those people: is this human; is this caring; is this even Christian? On the human side I know many couples who have parted. I know many who remain living on their own. I know many who have formed new relationships. I know many who want to enter into new relationships and I know many who have no wish to do so. I know, too, that these people do not rush out with the idea “I have to get married again [1783] or I have to have a man or I have to have a woman living with me”. This is not the case. It would seem that many Opposition speakers have this weird idea that divorce means divorcees gone mad. Funnily enough, this fantastic notion does not occur where people are merely separated or have been granted annulment or a foreign divorce. I believe that these people are watching and believing too much American soap opera.

Incidentally, and this thought has just occurred to me, I often wonder if many of the divorce lobby and in particular men of that lobby are not looking into their own hearts and saying that they will have to alter and amend their own ways in the light of such legislation being available to their long suffering spouses.

What about the children? We all accept that children must be protected and cared for in the best possible way. Much of the Opposition debate on the opposition to the introduction of civil legal divorce has centred around property rights. But there is much more of fundamental importance to any child, that is a loving, caring, secure environment in which they can develop. Children do not recognise castles or small houses or huts. Children do recognise love and care and security. They want and need it physically and emotionally. This stable, loving, caring, emotional environment is a major factor in their development. Children, too, recognise fear and hatred. They simply cannot cope with it. They need to be removed from it. They recognise when one parent is abusive of the other and they hate it. They want their mammy and daddy to be happy. But they recognise when mammy and daddy are not happy. They recognise when there is violence and cruelty and they fear it. They fear the perpetrator and they often unfortunately are the victims.

I challenge anyone who says that children are better off in a home, regardless of what the circumstances in that home are. This is not true. Children need a mother and father. What they do not need is a bad mother or a bad father. Better in my view that they have a solid, [1784] loving, caring home with one parent than turbulence, terror and hatred with two parents. I taught for eight years. I taught too many children who had been victims of incest, violence and abuse. I do not believe that in any circumstances those children would not have been better off if they had been removed from those circumstances. To say that treatment like that does not scar and mark them for life is to say that one does not understand exactly how children think and feel, or how they develop. In those circumstances I say: take those children out of there; remove them from that environment into a secure, emotional environment at a minimum with the full weight of the law to give them legal protection.

There are those who say that women would be worse off as a result of divorce. I wonder what they mean by that. Women, and it is mainly women who apply for barring orders and separations, do not believe that. What those people who expound this theory believe is that a woman is better off with a man, any man, and that a woman on her own is something like a chicken going around without a head. I am not anti-man but what I would like to tell these people and, invariably they are men, is that women do not regard living with a vicious, violent, drunken, or gambling man as preferable to living in dignity and peace. I can only conclude that men who expound these theories are totally self-centred and smug. All one can do in those circumstances is to sympathise with their poor, suffering wives.

I, too, am strongly in favour of the concept of conciliation procedures. I recognise that children can only benefit from such procedures. Where wrangling and fighting occur over their custody there is no doubt that they suffer. This wrangling in effect is putting them into the central stage of the confrontation and is really a demand by one side or the other to make a judgment favouring one parent or the other. Children do not want to make this judgment, and in fact they are not capable of making this judgment. These children as a rule generally love their mum and their dad, faults and [1785] all. That should be fostered as opposed to being destroyed. This is not contradictory to what I have said about the violent environment for often parents who could live apart in peace can only live together in confrontation. The benefit to separated couples of encouraging the children to love both parents rather than choosing sides will accrue not only to the children but to the parents themselves.

I cannot over-emphasise the work that is required in this area. I would ask the Minister to assure us and give us a commitment that the necessary finance will be available to set this vital service in place.

I am going to be somewhat political now. I really do not like taking this road of being political but I cannot sit back and watch what is going on without commenting. Fianna Fáil, the biggest party in this country adopted a neutral stance initially to this issue. For that one had to admire their judgment, even if one did not agree with it. This, they stated, they did to allow and facilitate a debate which would not be divisive and again one had to admire their judgment. Then they let a monster loose, `a Frankenstein to stalk the land,' issued from their very presentable and effective orator, Deputy Michael Woods. This creation is not new. It is typical of the rhetoric of such extreme right wing organisations as Opus Dei. One wonders how it came in to the possessive use of Deputy Woods. It could be coincidence but then it may not be. Perhaps the Deputy and the Fianna Fáil Party would clarify that for us. This monster has already begun to stalk the land as one will realise on reading the Front Bench Fianna Fáil speeches. That monster has stalked every one of their speeches.

I can only conclude that while Fianna Fáil adopted a policy of neutrality initially they had the policy well and truly changed for them and had not the courage or the will to oppose extreme right wing pressure in the interest of harsh and human realities. But then that is not too unusual. After all, Fianna Fáil care about votes. They do not care a whit about [1786] human tragedy and they certainly will not risk upsetting their policymakers.

Finally, what I have tried to do is to explain what are the realities of this proposed constitutional amendment. There are many people here who rely on us, the legislators, to make the case clear for them, whether it is the case for, or whether it is the case against.

The debate so far has centred mainly on technical arguments about constitutional changes and section this, and section that as if the whole population either understood or even had access to reading off the said sections. That is not the case and the sooner we bring back into this debate the whole human factor and talk about real cases the better. It is then and only then that we can hope for proper understanding in relation to what the constitutional amendment is all about, and what its implications will be for the future. Basically I, and most of the people who have spoken on this debate want to deal with reality. Basically, I am not in the business of dealing with “ifs” and “buts” and I do not think any politician was elected to Oireachtas Éireann to stand up and say “if” and “but”. They are asked to stand up and get on with the business on the basis of being simple and clear, clarifying the issue to benefit of the people as a whole.

Mr. Connor:I welcome the opportunity of speaking on this measure. As somebody said yesterday, it is a watershed in Irish politics that an Irish Legislature should at long last come to tackle this most emotive and controversial issue. Marriage breakdown is a social phenomenon which has grown in Ireland as it has grown elsewhere in the world in the past 20 years. Perhaps we have been among the slowest to recognise it. Certainly, it has not been recognised early or easily in either House and it has not been recognised too readily or easily by some of the major institutions in the country like the Churches. Because of our culture, our ethos and our attitude to marriage, which are very strong, it has not been easy for us to face up to the problem.

[1787] Nevertheless, marriage breakdown always existed in this country and the problems that ensure from it have always existed. They have grown proportionately in this country in the same way as they have grown elsewhere in the United States and Europe and, no doubt, in other societies that are not so developed as we are. We have always had it down the generations in this island of ours. We have a tendency to cover it up, covering up the misery of the people who are especially affected by it, the wives and the children. The lot of these people always has been and continues to be a sort of twilight world of cruelty, violence and of woeful loneliness and misery. However, there has been societal change and development. That is part of the growing phenomenon. Along with that change has come a change in our attitude, a change in recognition of the fact that the problems exists.

The Government, in recognising this problem at long last, have before this House a very restrictive, compassionate measure, which attempts to address the problems of marriage breakdown and to give some form of solution, some form of hope, to people who are caught in this blind alley of misery, and, indeed, in a legal blind alley also. There is no need for me to reiterate the terms of what is before us, about the fact that a couple must be separated for five years, must have a legal separation established in a court for two years, before they can be deemed to have a divorce. There is no need for me to elaborate on the special family courts we are setting up at Circuit Court level, which will hear the cases and deal with them. There is really no need for me to talk about the proposed State involvement in the conciliation service that would endeavour to deal with marriage problems in order to try to save it. All that has been dealt with.

However, I have a refer to some of the gross misrepresentations that are being made in this House, perhaps not as many today as I have heard yesterday, but nevertheless they are being made. Many of them have been made in the other [1788] House and many have been made by the various interested groups outside this House. The suggestion that this divorce legislation, however restricteive it may be, would promote marriage breakdown is utterly bogus. This measure is a minimal response to the social curse of marital break-up and the minimal compassionate response.

There is a view put forward of the children in a divorce situation as the innocent victims of some kind of cruel State rending of their parents' marriage and the taking away from them of their parents. This is a horrible, mischievous piece of misrepresentation. It is a caricature. There is no word from these people about the mental and physical cruelty that is visited upon children in a broken marriage situation, where drugs, violence, neglect and so on are part of their everyday existence. I hope that this amendment will go through. The subsequent legal changes would establish a legal framework to protect these most unfortunate victims of marriage collapse — the children.

Then there is that other piece of lying cant: that the wife and children of the first marriage will lose out on their rights of succession and otherwise to the family of the second marriage in relation to succession, in relation to property and to any estate which may exist. There is one side of that record of dishonesty being played to women particularly in urban areas. The story goes: now your husband can divorce you, he can throw you and your children out on the street and he can take over the family home for himself and his new partner. The other side is usually played in rural areas. It says to the farmer: Now your wife can divorce you, she can sell your farm, the farm that belonged to your father, the farm that belonged to your grandfather and she can run away with the fat proceeds of her share of the farm while you are turned loose on the ways of the world and she can enjoy herself with her new partner.

The truth is that the family courts will, in advance of the granting of any divorce, settle the matter of family property or estate; and, if this cannot be settled by [1789] mutual agreement, it will then be settled under the powers that would be vested in the court.

I will add one piece of advice. I welcome the idea of a separate family court of Circuit Court level to deal with these problems. I will add one piece of advice in relation to the make-up of the court. Of course, this can only happen on the passage of this measure, passage by a vote of the majority of people in the forthcoming plebiscite. The judges that are appointed will have to be very wise adjudicators. They will need to be people not just wise in the law but they will have to be very wise in all aspects of human behaviour and indeed in all aspects of life itself. I do not know the means we will have or choosing or appointing these judges, but I ask all concerned — the people who may be charged with asking to do the job, the people who will offer themselves to the the job, the adjudicators — that they approach their appointment, from whatever side, most carefully. That should be done in order to ensure that the best and most experienced people will be chosen to judge.

We also have the dishonest claptrap that this measure of civil legal dissolution of marriage will not just destabilise individual family life but that it will also destabilise society itself. The present situation of broken unions, with one or both partners making further unions, with what we call illegitimate children born as a result of these unions, where homes are being broken up, where wife and child battering are the norm. We have homes where children in their formative years have no parental influence other than shrieking matches, violence and downright hatred as their daily lot. Surely this cannot be conducive to stability in society. These cases are across the street or down the road from all of us nowadays.

As legislators, we cannot turn our backs on these developments in society. If we fail to recognise these problems and respond to them with a civil legal remedy containing the proper checks and balances we will have failed not only ourselves but also the electorate. The wording of the constitutional amendment refers to [1790] the fact that a marriage must have failed for five years before a divorce may be granted. We are told that the word “failure” does not have that unalterable degree of finality and that it could be interpreted as not meaning the complete death of a marriage. What makes criticism of the term most dishonest is that it is used in isolation without mentioning that “failure”, as used here, is used as “conclusion” after five years of separation with at least two years of legal separation granted in a court.

I have no wish to be critical of any Church criticism of this measure, particularly the Catholic Church. The bishops have every right and a clear duty to preach the Church's teaching on the indissolubility of sacramental marriage. We must all respect that right. We in this Legislature must expect from the Hierarchy the spirit which they set forth in their evidence to the New Ireland Forum. The legislator must exercise his or her right and duty to make laws of the common plural good of all strands of society that the Legislature has sovereignity over. We expect that our exercise of that duty not bring unfair inferences about sin or heresy.

Having said that — and perhaps some of it might be interpreted as criticism — I compliment the Catholic Church for being well ahead of the State in tackling the problem of marital breakdown. In eight of the past ten years the Church has dealt with 5,885 applications for annulment. Out of these applications, 828 decrees of annulment have been granted. In 1984 alone, which is the last year the Catholic Church have compiled figures for, from the ecclesiastical courts, the Church dealt with 686 applicants and granted 153 decrees of annulment. That is in an all Ireland context because, as we know the Church does not recognise the Border and one would have to reduce these figures by about 20 per cent to relate them to the situation in the Republic. The number of applications dealt with in 1983 was 631 with 94 decrees of annulment being granted. In 1976 the Church reorganised its canonical courts and streamlined them to make them more [1791] responsive to the problem they recognised well ahead of that time. The State has not done this.

Through the Catholic Marriage Advisory Bureau the Church has prepared couples for marriage. All couples of the Catholic faith are advised well in advance of their marriage to take marriage guidance courses from very experienced people. I compliment them for that because that is an area where the State has no involvement but should have had. Under the aegis of CURA it has reached out and given help and support and, indeed, maybe the only help and support, to girls who find themselves pregnant and unmarried.

We are faced with appalling statistics. Deputy Shatter quoted some of them in the other House. From 1980 to 1985, 15,000 couples applied for barring orders. That is 15,000 people who were forced to take the extreme measure of going to court with all the embarrassment that causes. Usually it was wives who were involved in applying for these barring orders to protect themselves and their children from violent husbands. We can only begin to imagine the cruelty, violence and sheer human misery that was visited on these wives and children.

Another statistic which tells us something about what has been happening in the past five or six years is that we now have almost 9,500 deserted wives in the Republic. These figures were supplied by the Department of Social Welfare. That is the number of women who are getting deserted wife's allowance and deserted wife's benefit. There may be more deserted wives because some might be described as being fortunate enough not to qualify for deserted wife's allowance as they may have sufficient means. In addition to the 9,500 wives caught in these desertion cases, at the end of 1985 there were 15,712 dependent children living with these deserted mothers.

We might just look back at the way the phenomenon has developed since 1980. At the end of 1980 there were 5,793 deserted wives with 9,568 dependent children. In 1981 there were 6,187 [1792] deserted wives with 10,166 dependent children. In 1982, it was 6,698 wives with 11,019 children. There was a big increase in 1983 — 7,303 deserted wives with 12,142 children. In 1984 there were 8,056 deserted wives with 13,788 dependent children. One year later there was an increase of more than 1,000 in the number of wives affected, bringing the figures to 9,130 wives and 15,712 children. These figures show the ever-increasing degree of marriage collapse.

This proposal, while restrictive is a compssionate response to this ever-increasing social phenomenon. We have ducked the issue for too long. We have deluded ouselves into thinking that the problem does not exist. Divorce is suggested as one of the remedies. We have had a blanket condemnation of divorce as being something which is inherently evil. Most reasonable people say that it is undesirable. I subscribe to that view but it is more desirable than the human tragedy which results from marriage collapse, family breakdown, extra-marital relationships, etc.

I will be voting for this measure on polling day. I come from the west where it is most likely, within the confines of the area where I operate politically the plebiscite will not be carried. I see around me the effects of marriage break-up. It probably does not exist on the same level as it exists in our cities but it exists nevertheless. The only compassionate and honest response I can make is to vote in support of this measure. It is sad that so much of the argument against it has nothing to do with compassion or with addressing the problem but rather has to do with political opportunism and a strange kind of political cruelty.

I hope this measure is passed. We are at an historical point in our history. If it fails it will not be addressed again for a generation. Some of the figures I quoted today will have multiplied in ten or 20 years time. That is a truly horrible prospect.

Mr. B. Ryan:There is a certain eloquence in the empty benches in front of me [1793] which suggests something of the confusion and uncertainty in our society about the issue of marital breakdown. While predictably I welcome enthusiastically the Government's decision to tackle the problem, I do not see it as an epochal issue. It is more evidence of the legislative process catching up with a decision people have taken on attitudes to the stability of marriage and personal views about what one does with a marriage which has failed.

This issue has become a great media one. I wonder what the political commentators will talk about in their commentary columns if this referendum is passed, because divorce has kept them going for the duration of my limited political experience, if not for a lot longer. I hope not too optimistically the same liberal, compassionate, progressive commentators will begin to write in an equally liberal, compassionate and progressive way about the oppression of our unemployed young people and our old people by a State system which is callous, unfair, humiliating and degrading.

All the things we say about the way society treats marital breakdown could be said ten times over about the way society treats so many of the victims of our most unjust society. The great quality that we here and the people in the media have in common is that we are all employed. We in politics and in the media may have problems about marital breakdown and, therefore, we have a certain commonality of experience in that area which is lacking between those who write, those who speak, those who politicise issues and those who experience the consequences of injustice and unemployment.

One would hope that, when this fashionable issue is dealt with and passed and approved by the people, some of the issues which affect not just 70,000 people or 100,000 people but in the case of unemployment 500,000, will be addressed with the same interest and compassion and the same horrified throwing up of hands about misrepresentation that is used with respect to marital breakdown.

Whenever some of the unfashionable [1794] conservative people make unfashionably conservative comments about marital breakdown, there is a collective expression of shock from the liberal media about how horribly unfair and unjust these remarks are. The same media are capable of making equally horrific, insulting and degrading remarks about the unemployed and social welfare recipients. I hope some of our commentators will address themselves to these excesses with the same diligence with which they have addressed excesses on the part of certain members of the anti-divorce lobby.

What we are talking about is a legislative or constitutional adjustment to reflect a reality in Irish life which Irish people will see as part of their lives, irrespective of whether the constitutional amendment is passed. The alternatives here are either to pass this referendum or to land us into a constitutional, legislative and social morass which may generate a comedy of the quality of “Divorce Italian Style” ten years ago but will not eliminate any of the problems associated with marital breakdown or prevent it. It will not transfer us back to the lovely days of the thirties, forties and fifties when everybody got married and stayed married, and nobody talked about things like marital breakdown. The fact that in those glorious days of traditional values, one million people emigrated is very often conveniently omitted from that little equation.

One hopes that this issue will be dealt with and that, once it has been passed, many of the other real social issues like unemployment and bad housing will begin to be addressed with the same enthusiasm and thoroughness, with the same incisive analysis so many programmes and columns have devoted to divorce over the past ten years.

There was a letter in one of the newspapers recently which pointed out that the only real difference between those who were in favour of this constitutional amendment and those who were against it was on the question of the right to remarry. At least on the surface and for the sake of the success of their political [1795] arguments, all of those who oppose this amendment now apparently favour broadly based processes of judicial separation. The real issue is not whether when couples separate legislative provision should be made for that separation nor is it about marriage breakdown but simply about whether, within the framework of the law and the Constitution under which we regulate marriage, we recognise that in certain circumstances where marriages breakdown people will be allowed to remarry. It is, if you like, one piece of a jigsaw of support for people whose marriages breakdown. We must emphasise that we are not talking about any legal provision to make separations permanent. We are talking about an extra dimension which would allow people to remarry. This is important. Most of the other aspects of divorce, as it is described in other countries, are already present in our society. We have an increasing incidence of breakup of marriage resulting in the separation of couples. This is very important in terms of looking at statistics that are generated from both sides, particularly in recent times from the anti-divorce lobby, from other countries.

As a result of all of this we have problems in relation to the custody of children, rights to property, succession rights, etc. There are cases where women whose husbands have abandoned them have built up homes for their children. Upon the death of the spouse the errant spouse returns and under the Succession Act can claim a share of the property in the event of there being no proper legal provision. Senator O'Leary may be able to guide me on this. He is nodding his head but that is my understanding of it.

We are talking about a situation which already exists and not a new situation which will create new problems. The only thing that will have to be addressed is whether giving people the right to remarry, which is currently denied them, will have an effect on society which is greater than the current evil of the breakdown of marriage.

We are not talking about people who [1796] have the right to go into Church to marry a second time. We are talking about a society where 87 per cent of the Roman Catholic population described themselves as regular Church goers on a Sunday to Sunday basis. What it will simply mean is that in some limited circumstances a certain proportion of that community and, indeed, of the other 13 per cent of society, may choose to marry in a State ceremony again if it is agreed that they can do so. We are not talking about a wholesale second marriage in Church which is where most Irish people choose to marry and will continue to do so. One would think that we were going to coerce the Churches into large scale remarrying of people because of the breakdown of their first marriage. We are talking about a community, 95 per cent of whom are Church going and suggesting that the right for a limited number of people to remarry in limited circumstances will apparently destabilise society. I find that whole argument quite incredible.

What we are talking about in terms of the right to remarry is the right to the contract of marriage, not to the sacrament of marriage. Does this have to be spelled out? If one were to listen to what is being said one would think that there was some sort of sacramental or mystical element which would create an orgy of lust under which the whole country would be submerged because of a two line change in the Constitution.

In terms of this debate, if we are to talk about the possible threat that an amendment such as this would make to society, we will have to talk about what damage the concession of the right to remarry might do to current spouses, to children and to society, particularly in terms of the income of the current spouses, their rights to property, their status in society, etc. We must talk also about the children. The truth is that there is so little evidence about the impact per se of a person remarrying on any of these areas, as distinct from the impact of separation, that nobody can put forward any real argument. There is an enormous amount of evidence available about the [1797] impact of what is described internationally as divorce on children. Apparently the evidence is contradictory but a considerable amount of international evidence has been waved around here and was quoted at enormous length in one speech in the other House to demonstrate how divorce damages children.

In fact, what was meant by divorce was the splitting up of the parents. That is not divorce. Divorce is where you end a marriage and the couple are free to remarry. The damage to children results from the departure of a parent, if there is damage. I am not so sure that it makes much difference to the child if parents who are separated for one or two years remarry. Presumably what affects the child is the departure of a loved parent from the home and the consequential emotional and other problems that might or might not result from that. Even if one accepts the international evidence that children are hurt by this, it is the separation that causes the hurt. We already have separation. We have it on a widening scale in both rural and urban areas.

I have talked to Members of this House and to virtually every local authority in the country and they all agree, regardless of their views on divorce, that one of the new problems they are encountering is that they are having to provide two houses for what used to be one family in an increasing number of cases. That is as a result of separation and not divorce. Those who launch into long arguments about the damage to children which allegedly results from divorce are, in fact, talking about something which already exists. They are not talking about something new.

What people have to prove is that the right to remarry harms existing spouses, their children and society. The evidence in relation to this issue is so thin on the ground as to be non-existent. We do not have much evidence from countries where separation existed for a long time and where divorce was recently introduced. Spain and Italy are the only countries where this happened and the evidence is that there was an initial rush for divorce when the divorce legislation [1798] was introduced, given the 30 or 40 years of all sorts of extra marital complications that had developed as a result of the absence of divorce. Once that initial rush was over, the incidence of divorce remained at a relatively low level which has more or less continued since.

Of course we may have damage to people as a result of the breakdown of marriage. It is probably true that, whenever a relationship breaks down, there is damage to the people involved whether it be within or outside marriage or a relationship between an individual and his or her religious community. Where-ever there is a close, long lasting intimate relationship, the end of that relationship must be damaging for the people involved. What we must satisfy ourselves about is whether if there is an alleged threat to society or to children the right to remarry is part of that damage. A child's perception of this would be so remote as to be negligible. We are actually talking about the damage caused by separation and not by remarriage. That distinction has been lost on many people who argue against this amendment.

It is in the breakdown of a relationship that the pain is encountered by a couple and their children. It is a tragedy that people have to work their way through. Any Member of this House who has children and who has the misfortune of being away for one, two or three nights from their children will have some insight into what it must be like for a family where a parent disappears indefinitely. The most painful aspect of political activity that I have experienced — I am sure this is true of every Member of the Oireachtas — is the possible impact on one's children of fairly substantial absences from home. In that context, what we should be worried about is not the actual damage of the introduction of divorce but the damage that increasing incidence of marital breakdown will do to our society.

We have not suddenly come to a stage where there is an unholy, godless conspiracy as a cleric said in a letter to the papers, to apostasize in this country but society has changed and it has become acceptable socially, acceptable in [1799] people's consciences and acceptable in family circumstances that marriage breakdown is a reality of Irish life. It is only ten or 15 years ago since an eminent cleric estimated on the “Late Late Show” that 25 per cent of Irish marriages were conducted in total silence. That was a long time before there was any talk of divorce. He talked about, what he called, “the great silence” in Irish marriage and when he was asked specifically to estimate what scale this reached he said that the great silence existed in about 25 per cent of marriages, where parents communicated with each other only through their children. That was 15 years ago and that, more than anything I could say, testifies to the fact that marital breakdown probably always existed but the remedies people felt entitled to take for that breakdown have changed with the change in society.

It is difficult to believe that in a society which is 95 per cent Roman Catholic, 87 per cent of them regular church-goers, that the right to remarry in a State ceremony is going to destabilise the entire society, particularly when that right is so severely and probably excessively in my view circumscribed as it is within this proposal. Linked into that concern for our society is a recently discovered — I do not want to be too cynical about this — concern for women's rights that has manifested itself in some circles as part of the campaign against divorce. We have had an nostalgic look back to old fashioned stability, to family life and to the way things use to be. I believe that a major part of the old-style, traditional stability of marriage was often based on a profound oppression of women.

Anybody who has seen Ibsen's The Doll's House will have no doubt but that the traditional marriage is based on male domination and female subservience in which the concept of a woman as an independent equal-thinking person is the most extreme form of revolution. Women were treated, until quite recently, as subordinates in marriage. The traditional Anglican marriage ceremony still requires a woman to “love [1800] honour and obey”, and I emphasise it is the Anglican marriage ceremony and not the Roman Catholic marriage ceremoney. The Anglican service and it is not the only one, still requires a promise of obedience from the women. That sort of traditional value is what people are harping back to when they talk about “the good old days when marriages did not break down.” Of course they did not break down because they were organised in a way which suited the dominant force in society, which was men and those who were the victims of that style of organisation had no rights and no status and no way of being independent. A woman had two choices, either stay married or become penniless and excluded from all, what was called, respectable company. That was a fine set of values for a male-dominated society and I will elaborate slightly and say that it was also a fine set of values for a male-dominated Church which did not really have much insight into the problems of women but which has now discovered all the suffering that divorce will bring upon women if it is permitted. It is also interesting, notwithstanding all this concern for women, that the vast majority of divorce cases in other countries, Great Britain in particular, are initiated by women. So not only do women apparently not understand the problems which they might encounter in this country but in other countries where divorce already exists, even though they know of the problems, they are so foolish that they go ahead and get divorced. The whole attitude to women in this debate is offensive and this latter-day conversion to the rights of women that has been manifested by certain opponents of divorce is hard to stomach and rather difficult to take.

I am fascinated by my Church's attitude to women but that is probably a speech for another day and I will not go into it now. But my Church's view on the destabilisation of Irish marriage as it is alleged will be a consequence of this very limited provision, shows a remarkable lack of faith in their own lay people. I have never completely reconciled some [1801] of the attitudes of my Church — I emphasise `my Church' because no matter how much they think it is their Church, in reality it is my Church as much as and probably more than it is theirs — to the laity. The leaders of my Church in their attitude to divorce show a remarkable lack of trust and faith in the lay people who given different circumstances they will describe as the real Church, the backbone of the Church and say that the family is the Church in microcosm — all the usual rhetorics that is said about the laity. This is all very hard to take given that they are absolutely pertrified that a limited form of divorce is going to lead the majority, or at least a substantial minority of this backbone of the Church into some sort of dreadful charge into permissiveness, lust, adultery and so on.

The laity are the backbone of the Church. A real church based on the teachings of Jesus Christ is based on the assumption that people make free choices to be part of that Church and that the Church I believe in has a commitment to compassion, a commitment to personal maturity and a commitment to generosity. It gives us an interesting insight into the Roman Catholic Hierarchy view of the laity to see how worried they are that one small change in the constitutional provisions for divorce can apparently destabilise the entirety or a large part of Catholic marriages in this country. I am also fascinated that this same Hierarchy who are so concerned about the laity are making a submission to the Synod of the Laity in Rome at the end of the year without any real consultation with the laity here. Most lay people in this country do not know that there is actually a Synod of bishops on the theme of the laity taking place in Rome at the end of this year. Our Hierarchy have made a submission to it and to my knowledge have had no formal consultation with the laity on any scale because they know what we think without asking us.

Mr. O'Leary:I do not think that is correct; there has been consultation.

Mr. B. Ryan:Not in the churches that [1802] I go to. I have not seen or heard of any consultation. Anything I have read about the Synod of the Laity I read in Church publications published in Britain, not in this country — the Church publications published in this country are rather difficult to read.

It is worth contrasting — I say this without meaning to be at least too oftensive — the attitudes of the teaching authority of my Church on, for instance, how power should be handled and how riches should be handled, which are areas where they have a lot of experience, being in powerful positions themselves and being the controllers of riches. What Jesus Christ had to say about the rich and the powerful is a good deal less equivocal than anything he had to say about marriage or sexuality. I have always found the attitudes of my Church on matters of riches and power extraordinarily equivocal. The need to preach the Gospel resolutely is often qualified where it would bring the Church into headlong conflict with the powers in a society at a time as evidenced by equivocation in Hitler's Germany as a classic case. We were told it was necessary not to preach the Gospel fully because it might have had certain unpleasant consequences. Equally, Christ's teaching about riches and about the unfortunate consequences for a rich man in terms of salvation are hardly preached from the rooftops on every possible occasion by the Hierarchy of the Roman Catholic Church. On the other hand, if you look at their teaching on the whole area of relationships between men and women, on sexuality, on contraception and divorce you will find a rigid inflexibility which makes no exceptions, which has no feeling for the circumstances in which people may find themselves. One can only conclude that in the areas in which the teaching authority of my Church have a personal experience they understand their own dilemmas and people's problems but in the area where they lack the personal experience they see it as possible to make rigid, inflexible rules which are binding on all.

In some ways the Hierarchy of my Church remind me a little of the benign [1803] colonists of the 19th century who attributed to the natives certain qualities for instance, a certain simplicity which would be shameful to disturb, capacity to be easily misled by outside influences and who believed that they knew really what the natives thought even if the natives did not tell them and who had absolutely no intention of ever allowing the same natives any major say over their affairs were controlled. To a certain extent I think the Hierarchy in my own Church have a lot of those characteristics.

Of course they do claim the right to regulate the customs of the natives also particularly in the area of marriage. In truth, of course, in terms of the whole structure of Christianity the lay people are the real Church fully live with all the real difficulties of leading real lives and all the real pain that springs from leading real lives. Consequently, in terms of religious faith lay Roman Catholics are the people who have the real faith which is being tested in ordinary life, the real test of religious faith. I said before that the real test of religious faith comes in how you reconcile yourself to having a sick child or to having a sick spouse or to loneliness, not in some sort of sacrificial giving up of some part of ordinary human experience. Roman Catholicism has far too much emphasis on the sacrifices involved in giving things up and far too little on the sacrifies in giving. That distinction could well be reflected upon — that we are too busy talking about giving up things in sacrifices and far too unprepared to talk about the actual sacrifice that is involved in giving.

In the matter of this referendum and this amendment the real issue is not divorce. As I said, notwithstanding a whole lot of smokescreens that are being generated all around the place most of what we are told will be a consequence of divorce is already with us as a consequence of marital breakdown. The real issue is not divorce but is increasing marital breakdown. I think if we were to really deal as a society with marital breakdown, which is what we should be concerned [1804] about most fundamentally, we should try to deal with its causes.

I do not think a society in which an increasing number of marriages break down is really a society with a very strong, hopeful future. A society in which relationships between men and women less and less are seen to last and in which children become the victims of those less and less stable relationships is not a particularly healthy society. If we really want to talk about the problems of our society that are consequential on marital instability we should not talk about preventing people getting divorces: we should talk about why it is that we have marital breakdown and talk about alleviating that situation.

Of course there are reasons for marital breakdown. There is the immaturity of the individuals who marry, their lack of preparation for marriage. That is an important part of the problem. There is the poor quality housing in which many people have to live. There is the increasing oppression of unemployment which I think more than anything else in our society is de-stabilising marriage. Anybody who saw a very moving “Today Tonight” programme on unemployment about a year or a year and a half ago could not but be touched by two of the couples who were on that programme. They gave all the impression of being couples who were very close to each other, who understood each other's feelings and problems, who understood and communicated with each other far better than many would talk a lot more eloquently about marriage and marital breakdown and communication in marriage etc. In both cases both partners in both couples said that they reckoned that the marriage would not survive — even though in both cases they seemed to be model marriages — if unemployment were to continue because of new stresses and new damages and new threats that they had not experienced before and which they were not equipped to deal with and because of a society which made them feel, as well as everything else, guilty for the fact that they were unemployed.

[1805] Also, there is no denying that in an increasingly competitive and materialistic western society a form of selfishness has become manifest, a feeling of a proproprietorial right to my own happiness at all costs. That can be part of the causes of marital breakdown. I think we should look more deeply at it and we should remember that the whole issue of breakdown in most societies has corresponded fairly well with industrialisation and urbanisation. Those who claim that divorce causes divorce have produced statistics which show that when divorce is introduced the number of divorces increases. The fact that eminent sociologists in high positions in churches can use that sort of statistical correlation to prove something does not say much for the quality of their analysis. As somebody has said, it is equally true that during the summer drownings go up and sale of ice cream goes up. That does not prove that eating ice cream causes people to drown.

Similarly, to say that because divorce increases in society where divorce is allowed, that proves anything: it does not prove anything. What it perhaps proves is that in societies where divorce is introduced there are forces at work which (a) create a demand for divorce and (b) destabilise marriage and it seems that most obvious ones which correlate with all societies where marriages have begun to break down in increasing numbers are urbanisation and industrialisation. It is easy to understand why. All of the supports that once existed for the early stages of marriage in terms of an extended family are taken away from people. People are left isolated, left alone at the most difficult period in their marriage, in the early days when the wife, in particular, is isolated with small children, when the husband in a large urban area could be away from 7 o'clock in the morning to 6 o'clock in the evening even if he is not working long hours of overtime. In big urbanised areas of western society people can be travelling an hour and a half to and from work.

In addition, there are the increasing pressures of commercialisation, the [1806] extraordinary loneliness that is characteristic or urban areas for which there is no parallel, I think, in rural society. Rural and urban loneliness would be worthy of a sociological study on their own, but we ought to acknowledge that in urban areas there is a sense of isolation which nobody in a rural area can ever really understand. We tend not to like that sort of an analysis because it raises very serious political and economic questions and so we lash out, for instance, in the direction of permissiveness. My Church, in particular, tends to blame a lot of the problems of marriage breakdown on the increasing permissiveness of the Western society. I said often before that a lot of the sexual permissiveness is more a sympton of the loneliness of Western society than it is of any sort of lack of commitment and generosity.

The State will very often tend to blame things like lack of discipline in our young people, lack of willingness to sacrifice which allegedly characterised the previous generation. We are told about — I have talked about it at length before — the decline in traditional values and usually what people are saying is that the reason we have more marriages breaking down is because there is something wrong with our young people today, that they are not as prepared to make sacrifices as the previous generation and are not prepared to do this, that and the other. There is a particular cheek in blaming our younger generation for the consequences of a society they inherited; the generation — I am talking about my own generation now — which got married in the past 20 years, which actually discovered the Third World as a problem of concern to western society and transformed it from a place which we could exploit to a place to which we had obligations; a generation who created the most effective anti-war movement the world has ever seen; a generation which discovered and campaigned against the oppression of women; a generation which has done so much else. To be told that this generation is less generous than previous generations, is less willing to make sacrifices and is, therefore, less willing to put up with hardship in marriage is an offence [1807] to this generation. The truth is, of course, as I have said before, that the traditional values this generation reject are rooted in inequality, are rooted in exploitation of women, of classes and of racial groups. Our young people are landed in a rootless society and a lot of what we see in terms of the breakdown of family life is a consequence of that rootlessness.

One must remember what are the good-values in our society. Written into the Treaty of Rome, for instance, is a commitment to the free movement of capital and the free movement of labour. You would think labour was just yet another economic unit, like money. The values of our society are crystallised in that phrase, “the free movement of labour”. What we are actually talking about is the movement of people on a grand scale at the dictates of economic forces. I cannot think of anything more destabilising to marriage, to family and to relationships, than a society in which people are expected to transfer themselves at the dictates of economic forces.

I cannot think of any more destabilising force because when we talk about the free movement of labour, we are talking about people as economic units, and when we talk about labour market mobility and labour market flexibility, we are actually saying we expect people in large numbers, and on a grand scale, to take themselves away from their roots, from their background, from the society where they feel at ease, in the interests of economic efficiency. That commitment to the free movement of labour and to all that goes with it, which leads to urbanisation, which leads to large scale industrial complexes, is probably the underlying cause of much of the breakdown in relationships, the loneliness, the mental illness, etc, which characterises western society. When you add to this the sort of mythological entrepreneur we have canonised in recent times and look at his characteristics you can understand why marriage is threatened in our society and why relationships are threatened.

The real entrepreneur is the sort of fellow who tells us and boasts that he has [1808] not seen his family for the last six days, that he works 14 hours, six days a week. That is supposed to be a “good thing” for our society. It is a matter of great regret that everybody in our society does not work like that. That is the way we are told to make our society more efficient. What we are actually saying is that people should sacrifice themselves and their families, and a whole lot of other values, in the interests of economic growth. We are told about the unwillingness of Irish workers to do overtime, perhaps because they want to be with their families; perhaps they have this misguided notion that their family is more important than their earning capacity — perhaps. But we are told that this is a regrettable fact.

A succession of Irish Ministers in the Industry portfolio have told us how regrettable it is that there is not more flexibility in the Irish labour market, there is not more willingness to be mobile. In other words, they are sorry that more Irish workers will not pack up themselves and their families and move from Cork to Dublin, Dublin to Cork, Dublin to Limerick, Limerick to Galway, depending on where the economic opportunities are. That, apparently, would be “a good thing” for our society. It would improve economic efficiency. The possible consequences for Irish marriage, for Irish families, for Irish relationships, are rarely adverted to.

Finally, if I can make a passing reference to one of my own favourite myths in terms of this free movement of labour, this dehumanising of people and their turning into economic units, it is the model entrepreneur who apparently is a good guy because he mortgages his house in order to set up a factory. I think there is something particularly cruel, cynical and hurtful about a society which requires a person to prove he is a real entrepreneur by actually mortgaging his house and putting his family and his childrens' security at risk.

That really is where we should be looking if we are talking about dealing with the problem of marital breakdown. That is really what we should be talking about. What else do you expect but breakdown [1809] in an economic order whose values are hostile to compassion, whose values are hostile to sacrifice and whose values effectively are hostile to peoples' commitment to home? What else do you expect from that but a breakdown of marriage? If people cannot have the time to have stable relationships, if they cannot have the peace to have stable relationships, how can you expect anything other than the collapse of relationships on an increasing scale? Let it be noted that one of the things that have characterised Margaret Thatcher's Britain over the last six years has been an increasing incidence of the breakdown of marriage. I do not want to claim that it proves something because I have criticised those who have used various other indices to prove things, but it would be well worth pursuing the correlation between Thatcherism and the collapse of marriage in British society. There is a sort of emphasis on the idea that real men work 14 hours a day and do not really feel they have an obligation to their children.

Mr. O'Leary:And they do not eat quiche.

Mr. B. Ryan:I will discuss quiche with the Senator elsewhere. If we really want to build up a pro-family society as distinct from encapsulating the teachings of one Church in our legislation which, unfortunately, in my view is a large part — not all — of the motivation of those who are campaigning against divorce, then we should be building a society where people have time to be with their families, where we do not create a myth of hard work and enterprise which separates people from their families, where people have the income within a reasonable working week to be able to be with their families, where people have an education which centres on the worth of being with their families, where people have housing which sustains family life and where we have legislative processes — and it is a subordinate role — which sustain families. That would be in my view a pro-marriage, pro-family, pro-stability [1810] society. In the absence of our willingness to provide that, we can only do one thing and, that is, to make provision for those who are victims of an unfair, uncaring and often unjust society.

So, on this referendum I first of all hope it will be passed. I am confident it will be passed because I have faith in the ordinary people of this country. I have faith in their compassion, in their commonsense, in their Christianity and in their generosity. Those qualities will not be disturbed by scaremongering, by hysterical over-reaction to a limited form of divorce and by some of the high-level propaganda they are going to be subjected to from the pulpits over the next three or four weeks. I think the Christianity of ordinary people is of a deeper kind and of a deeper quality than that of many of those who claim to be in a position to teach them.

It extends beyond mere legality into a perception of how you live your life. In that perception of how you live your life, they will not be prepared to impose unnecessary burdens on other people. Therefore, not only do I hope that this referendum will be passed, but I am confident that it will. I am confident that ordinary people have a wisdom which most people in authority tend to underestimate and which particularly Church people in authority tend not only to underestimate but to be highly suspicious of. I welcome this proposal. I support it enthusiastically and I look forward first to its passing and then to the interesting legislation which will follow on from it.

Mr. Robb:As I was driving down here this morning, I turned on the radio news around about 1 p.m. I heard the comments of Senator Fitzsimons. I hope that the courage and the charity which he has shown as a practising member of his religion towards other people who are not of it will, in fact, eventually pervade the attitude of us all towards a coming-together which is needed, not only in family life but in the life of this nation. It is in that perspective that I will make a few remarks.

I must say, however, that sometimes I [1811] wonder if I am in an island of unreality. The front page of the Coleraine Chronicle last night had monstrous pictures of men parading with cudgels and masks on the strand at Portstewart, and the Mayor or deputy mayor of the town next door seemed to have full knowledge of what was happening. He is an official public representative. We read this week of a number of people who have been murdered and killed in Northern Ireland and when I heap under my arm all my files, Seanad reports, newspaper cuttings on the subject of divorce, sometimes you could not blame me for wondering what sort of an island we are living on. Since I had the privilege of being appointed to this House, this is our third attempt to deal with this subject. I was tempted to say I had said all I can on this subject and to make reference to a previous speech in a Seanad debate, but, for what it is worth, I will make a few remarks on the proposal to hold the present referendum and on the contents.

The important thing about any legislation is that it must recognise reality and must not seek to make a bad situation worse. That seems to be the concern of most people who are either against the referendum or are for the Government proposal of a modest movement towards allowing divorce in the Irish Republic.

There has been a debate about the value of the words “breakdown” and “failure”. In either case the sense of failure can hardly avoid being transferred to those who are most affected, whether it be by separation or by divorce. I would not altogether agree with Senator Brendan Ryan that the damage to the children is confined to the act of separation. I am quite certain that there must be a lot of confusion in the minds of many children who are living with one parent and who find the other parent, whom they had expected to be sharing their home, living with someone else. It would be unrealistic to imagine that this does not also have negative effects on the emotional stability and development of those children. Before leaving the subject of the children, we must ask ourselves the other [1812] question to which Senator Ryan addressed himself: are children not better off in a home with one parent where there is some security and love and where there is an absence of tension, conflict, cruelty and uncertainty — perhaps the latter has more importance than the others — than in a home where there are two parents who are, at the very best, constantly bickering and at the very worst, indulging in either cruelty to one another or cruelty to the children?

My next question is one most people who are concerned about marriage as an institution must address themselves to. It is a question which I brought up on the last occasion and you must forgive me, a Leas-Chathaoirleach, if other Senators have alluded to it but it is not one I have seen discussed widely in the press: what effect has a broken vow not only on the people concerned but also on the society to which they belong? I have always maintained that if one gets to the point of actually making a vow, and fully appreciates what one is being asked to do, but then breaks that vow, he or she must pay a great penalty for it, because a broken vow, without some annealing, repairing or redeeming process is, in a sense, a broken person. In Ireland many of the vows that are taken before the altar of God are being broken today. I have to ask the next question: do those who are engaging in the taking of these vows fully appreciate the significance of the vow? Secondly, does the vow itself have less significance? Is it intended to have any less significance than it had in times past? Thirdly, what responsibility do the administering agencies have — be he priest or parson or, in the case of a registry office marriage, a civil servant — for ensuring that those who are engaging in either promise or vow fully understand the significance of what is intended?

That leads me on to a point I will make in relation to the dissolution of marriage. I hope to show that one should call into question the role played at the time by the administering agency in relation to the creation of the marriage based on the vow taken at that time. One has to recognise that one of the central features [1813] of Christianity has been repentence and forgiveness, and through that we are led to believe that we can regain a feeling of wholeness and integration. In that context, the Irish Churches — I speak for my own in this respect — for far too long concentrated on the vertical limb of the Cross at the expense of the horizontal. We were all persuaded to get down on our knees at the drop of a hat to ask our Creator for forgiveness, but very rarely were we asked to get up off them and to seek forgiveness from the persons, group or community we had violated.

Those who are involved in creating conditions whereby marriage is sanctified, may have an opportunity of making a contribution in this area because of the possibility of separating Church from State to a small degree in the proposed legislation. Taking it from the other side, the person who administers the vow, the priest or the parson, may very justifiably feel aggrieved to be denied any role at the time of the dissolution of the marriage. We have to look at it from both sides.

In relation to the setting up of the family courts, it has been suggested that there should be sociologists in attendance. There is allusion in the proposed legislation to access to matrimonial breakdown services. We should ask if the administering agency, either in the form of the man who administered the original vows and discussed, before the wedding, the implications of what the people proposing to get married were intending to do, or a representative of that institution, has a role to play. In my view the Churches could quite understandably feel aggrieved to be denied such a role. That shows it is a two way process. We must ask what preparation they have given the young people who are taking the marriage vow in the context of the social, personal, metaphysical, physical and psychological implications of what they are doing. We must ask them if they feel sure that the young people whom they are marrying have a clear understanding of what is involved and if the preparation has been adequate. I was delighted to read recently that the Catholic Church [1814] have taken very much more seriously their role in marital preparation and that the proposed legislation includes a minimum period of three months between the proposal to get married and the time at which one may be married. Therefore, all in all there seems to be a great deal of progress in terms of more enlightened thinking, more searching into the causes of marital breakdown and the effects, not just in personal terms, family terms, social terms, but also in what is important, the methaphysical dimension of what is involved in the marriage bond and the unity of people in relation to a well ordered, integrating type of society.

I come to another question. What do we mean by the State and why was an absolute prohibition on the dissolution of marriage introduced into the 1937 Constitution? Are we thinking in terms of what I would call a somewhat dated concept, the centralised nation state? Are we aware of the increasing focus on the concept of the interdependent ethnic groupings? England is now a classical example of that with its multi-ethnic minorities. Are we aware that a person may belong to a community in one sense and have allegiance of loyality to a collectivity of another? Someone of the Islamic persuasion may be living in the town in which we live and may be well integrated into the community businesswise and professionalwise, and yet have a completely different loyalty to the Islamic religion and that loyalty may supersede the community loyalty. Are we looking at what was alluded to in Desmond Fennell's book Beyond Nationalism to the gradual evolution of a community or communities?

I am trying to say that we no longer seek to live in a uniform state. We try to see ourselves as living in a state the fabric of which has a great deal of variety and out of that variety we feel and hope that we can build a new strength. Therefore, if I come now to the 1937 Constitution I can understand the historical reasons for that Constitution, particularly in relation to the result of the 1918 General Election and to the understanding of democracy which was so prevalent for so long, that [1815] that democracy equalled some form of majoritarianism. The question about the 1937 Constitution leads me to ask if it was not an attempt to justify on the grounds of majority rule the moral ethos of the vast majority of the people living in the State without perhaps taking into consideration so much as would be done now the feelings of the minority. Of course, the minority then were not very enthusiastic about the prospect of divorce either, but let us not forget that Ireland had divorce — it may not have been called divorce — long before the English arrived here. My very brief researches into the Brehon Laws expose that women as well as men could terminate the marriage long before any colonialism or external code was involved in relation to the native Irish.

The other thing about divorce which may have been a complicating factor in the minds of people in the earlier part of this century is that it was always available to the aristocracy provided they were able to provide for the excluded wife, provided there was enough property or money to support her. I am sure that was a great cause of resentment. If you had land, property, money, you could get your divorce and be socially acceptable in that stratum of society that had land, money, clout and power. If you did not have these things, then that was not as available to you. In any case, however as things were after the Treaty, divorce was still available in Ireland and only since 1937 have we faced a situation of an absolute prohibition on the dissolution of marriage with the possibility of remarriage of one of the spouses.

A point made in my contribution to the last debate on the matter of marital breakdown is that the 1937 Constitution was ratified by 680,000 people and 520,000 voted against it while 31 per cent of those entitled to vote did not do so. Therefore you could say in effect that fewer than 40 per cent of the people of this part of Ireland voted for that Constitution. Of course, it begs the question: what would the result have been had the people of Northern Ireland been included [1816] in the voting on the referendum to pass the Constitution, as it might be reasonable to consider that they could have been entitled to if one reads the implications of Articles 2 and 3.

I move on 30 years to the 1967 report of the Committee on the Constitution, who made the constructive recommendations with regard to Article 41. I am sure these have received quotations by other Senators but for the record I will mention the six which were made at that time. They were: 1. That Article 41.3.2º takes no heed of the wishes of the minority in the Irish Republic whose religion does not prohibit divorce. 2. That if the Constitution was intended for the whole island of Ireland then the percentage of Roman Catholics, while considerable, is not overwhelming. 3. The effect on North-South relations is not inconsiderable. 4. There are other predominantly Catholic countries which do not in their constitution absolutely prohibit the enactment of laws relating to the dissolution of marriage. 5. That absolute prohibitions in the Constitution appear even more rigid than regulations imposed on Catholics as a result of the more liberal attitude following the Second Vatican Council. 6. There are several circumstances in which the Catholic Church will grant dissolutions of valid marriages or will issue declarations of nullity. I will return to that in a moment.

Let us now take the question of compassion and the possibility of making a fresh start. Recently I was very impressed, when reading the series of articles in The Irish Times, about the dilemma of priests wishing to leave the Church. While there was the old archbishop who delivered the metaphorical crozier blow, on the whole there was a very enlightened, understanding, loving and compassionate attitude taken. The sort of thing one heard was that they did not pretend to understand why you were doing this but that you would be in their prayers and God be with you. Having read that with compassion, I thought about these men who certainly knew, if no one else knew, what was involved in a vow. I would have thought that the [1817] Catholic priest understood more than anyone else the significance of what he was doing on the day on which he took his final vows. Yet after great soul searching, great heart rending — I am sure a very painful experience in time as well as in terms of psychology — a priest came to the point where he wished to leave the Church and he want to the bishop. The bishop was compassionate and many of those priests left the church and seem to have married satisfactorily.

I am also certain that because of the nature of the vocation, the means of redeeming the break which had taken place and to which I referred, was very readily available and understood. If a marriage with the church involving vows of such a serious, important and central manner can be broken and if compassion and understanding can be shown to the breaking of those vows then other people who were not as well equipped perhaps to understand what they were doing at the time they took the vow, and even those who did and who are rent asunder by breaking it, should receive similar compassion. It is important to recognise that in the present legislation we are not opening the floodgates to divorce. I would not support this legislation if I felt that we were. We are entrusting the ordinary people to which Senator Ryan referred, with the right to have this referendum and to have the Article changed in the Constitution. We are also allowing them the right in future to decide if that is enough or if they wish, in any way, to amend what has already been decided on.

Therefore, one has to appeal to the compassion of ordinary people, particularly those who are fortunate enough to have happy or satisfactory marriages, to consider the terrible dilemma of those who are stuck in a state of great sadness and frustration. It is difficult, coming down from the North to see marriages annulled and then feeling that the people involved, if they remarry afterwards, are bigamists in the eyes of the law of the State. A civil action has been taken against only one person in that plight, [1818] this needs to be regularised and this is an opportunity to do so.

Failure to pass this referendum must affect Northern Ireland. People may pretend that it will not, but it is bound to. If the proposals are not passed then certainly the view will be reinforced that you have as sectarian a country here as we have north of the Border. I appeal to the Catholic Church in Ireland to ask themselves if this will not afford them an opportunity to be free from having to pressure politicians and be more readily available to understand and influence the people in this very important area of their life and living. Do not let us forget that the Constitution will increasingly have to accommodate, if not a multi-ethnic community in Ireland, certainly different people, with different viewpoints held with equal sincerity. I have said often that if a Constitution is a document that reflects true unity, it must be really a reflection of the consensus, which is the basis of any claim to such unity. We know that the present legislation is necessary for the social good but we must also face up to the facts that, regrettably, there are pressures which have resulted in increasing marital breakdown and marital failure. We are not just talking about a few marriages, we are talking about thousands of people. As legislators, therefore, we must take our responsibilities in this area very seriously indeed.

I hope, in the process of legislating, that all these factors will be given some consideration, that we do not see it as just a social obligation, in political or theological terms, or in terms of its effect on a divided country, but that we try to consider how we will get the people to grow in unity, if we cannot do something about the disunity at family level. We should also try to do something to redeem those who have been broken by it on the one hand and to give a fresh chance for a new start to those who genuinely seek it.

Most important of all is the need to influence people, especially young people, to respect the integrity of relationships. Much of our difficulty has come about from freedom in relationships [1819] which does not fully appreciate our obligations to each other in that respect.

Far from seeing the enactment of a well controlled and limited access to divorce as a failure for the Church it should be looked upon as a new opportunity, one in which they are at last free from the need to put pressure on politicians, free instead to focus their considerable energies and resources in providing new opportunities and insight for the development of our spirituality and for our understanding of the penalties we pay when we compromise the integrity of our relationships.

In the heyday of permissiveness, in the sixties when I was young, I never heard churchmen in Ireland making the distinction between existentialism and permissiveness and yet there is a very important distinction to be made. I do not see how a Christian, any more than a member of the Islamic congregation or any advocate of any other theism could find it easy to accept existentialism in the sense of Jean Paul Sartre. Nevertheless, the one great thing about Sartre and Simone de Beauvoire was their almost complete honesty, I say almost because, as human beings, one of the hardest and greatest things, of all is to try to retain this honesty. Because they had honesty in their existentialism, in their behaviour to each other and in their behaviour before the world, they did not suffer psychologically as far as we know. There was no deceit in their arrangements. Permissiveness, on the other hand, has always got an element of deceit in it whether it is deception of wife, girlfriend, parents, friends or what have you. It is that deception in the heyday of permissiveness which has been the cause of psychological torment for so many people 15 and 20 years later. I speak from fairly extensive clinical experience in the matter.

Therefore, as we look at this we have to say that there is another element which we are ignoring at our peril when we look at purely and simply the need to legislate. There is the metaphysical dimension and it is in that area that I hope the [1820] Churches will now have a new opportunity, as politicians take up their responsibility for legislating widely for the difficulties of the people, to recognise that different people look at society in different ways. I look forward to having these proposals passed into legislation. I feel sure there will be a referendum and I hope the referendum is passed by the people.

Mr. Ellis:It is important that all Members, irrespective of the views we may hold, express our views on this proposed amendment. I am glad Members have not used this in a political way and I hope the general public will recognise that Senators, irrespective of which side of the fence they are on, were responsible when it came to debating this important subject. To some people the debate is not that important but to many it is a major issue. It is a major issue not alone for the Churches but for married people in general and those who propose to enter that state at a later date. We have all come to accept that marriage is forever. That has been the belief of most Irish people down the years. We all know that all marriages have not been like that, that there have been many cases where marriages have broken down. I believe that where the ship hits the rocks both parties play a certain role in the breakdown.

Many marriages have broken down due to the fact that it was fashionable here a number of years ago for girls to get married when they were young. Many young men and women entered marriage without realising what they were taking on. They entered marriage in an immature state. For that reason the proposal in regard to raising the age limit is good but if we look at the other side of the coin and consider what divorce, freely available or otherwise, may do to our society we must step back and take a hard look. I know the amendment proposes a five year span before anybody can seek a divorce and remarry. In my opinion it will cause major difficulties on the family side.

We know the damage that can be done [1821] to children of a marriage that breaks down. We must do the best we can as far as they are concerned. We must take into consideration how the partners to a marriage will fare out in the event of a breakup. Statistics from the United States and England with regard to marriage breakdowns and divorce show that the subsequent marriages of divorced people hit the rocks. I am friendly with many people who live outside this country who have had marriage breakdown problems and who have found that even remarriage was not the answer. The reason is that there has always been, and always will be, a certain amount of jealousy or envy between the families of either partners who are involved in a second marriage. One wonders if there is a way out without a way in the second time. I believe that there should be no way out but when I see the predicaments of some people I wonder if we should ask the Church and the State to sit down and study the question of marriage breakdown.

It is a slight pity that the referendum is being held before the report of the marriage breakdown committee is issued towards the end of the year. It could be of benefit to us if we had the view of that committee. We must examine this and get a public debate going about the referendum. That public debate must be held without rancour and without any political motives being brought into it by anybody. As a politician I would be the last one to campaign for either side. I have my own personal opinion and I know which way I will vote but I do not believe that as a politician I should get on the soap box and try to foist my personal views on my constituents or on these people who support me. Those people are intelligent enough to make up their own minds. I hope as many people as possible will cast their vote. Let nobody say after the referendum, irrespective of the outcome, that the result could have gone one way or the other had he or she cast their votes. Those who do not vote are not worthy of having the right to vote in any election. We must ask everybody, Church, State and the pro and anti-amendment groups [1822] to carry out their campaigns with respect for the view of the other side, without any mud slinging or attacks. Is the Minister of State in a position to say what is going to happen with regard to marriages which have already broken down and where agreements have been reached with regard to maintenance? Will they have to be reviewed in the light of divorce legislation?

Mrs. Fennell:It is in the Government's statement.

Mr. Ellis:Many people are worried that existing agreements following dissolution may be reviewed. If this amendment is carried the State will have to pay in the long run. They will have to maintain many of the wives who will be estranged as a result of this, women whose husbands will have obtained divorce but default on maintenance payments. We all realise that at the moment in case of marriages that break down, the State is picking up the tab in many cases. While the tab may not be great financially the people who are defaulting in their payments to their spouses and families are guilty of a major crime, a much more major crime than to walk out and pay their maintenace. The single parent is not going to be in a position to provide for her family and it is mainly the wives who are left high and dry in those situations. She will not be in a position to provide the upbringing she would be able to provide if she had the maintenance which might be due to her.

We should look on this debate as one which, as Senator Robb stated, affects the entire community, North and South. While Senator Robb may express one view in regard to how it will be viewed by people in Northern Ireland, I was interested to hear a lady who was attending the ICA conference in Killarney this morning say on radio that she was opposed to the introduction of divorce having seen the damage which had been done to some families in Northern Ireland as a result of divorce.

If we were to allow divorce, even after a five year period, we could be opening [1823] the floodgates. The time is not right. We should have allowed the debate to continue for a longer period than has been the case. The effects on family life and on the values which many of us have come to expect could be greatly eroded by divorce. If we look to the other side, and we have to look at both sides, we must ask which is the worst situation? Where the children are being reared in a situation of war, to put it mildly, where neither party may be agreeing, the children suffer consequently. Will they suffer more in that case or will they suffer more if they go with either parent?

There is a need for some type of State sponsored counselling service which should be made available and there should be a much wider counselling service available, apart from that provided at present by the Churches. The State has a role to play in this which it never seems to take up. I would have hoped that there would have been some attempt made before this to have marriage counselling facilities made available through the State.

Many of us know of situations where the Church counselling service may have saved some marriages from going on the rocks. I know of cases where people approached their Church leaders and the counselling which both parties received was sufficient to carry them over the rough spot. The people who have entered into marriage have done so of their own free will and they should be prepared to accept the consequences. Senator Robb mentioned that vows once taken but broken subsequently are something the people concerned have to carry in the sense of a scar on themselves which they cannot erase. Plastic surgery can erase a scar on the skin but it will not erase a mark from the mind. I would put divorce in the plastic surgery sense to that extent.

Irish people and Irish society in general are not at present prepared to accept divorce. I would not like to see divorce introduced. The Church has a system of annulment which is being used in many cases. These annulments, which are not recognised by the State and which lead [1824] to bigamous marriages at a later stage, should have some type of validity attaching to them. The Church and the State should have sat down, as I said earlier, and worked out an agreement whereby the breakdown situation would be dealt with in a constructive manner but that before it would be dealt with there should be some situation other than divorce tried and pursued. I am not talking about a short period but about a period of many years to see if the marriage could be held together with the intention of saving the family.

The greatest sufferers, apart from the couples themselves of a marriage breakdown are the children. We have all seen the children of such marriage blame either one parent or the other. There is always an amount of disagreement and rancour between the children and the parents. Before we take the step of having a referendum on divorce we should have a further examination of some type of family advice centre operated by the State with regard to marriage breakdown. The Church has a role to play with regard to marriage breakdown.

I hope that this debate will be carried on in public without people coming to verbal blows with regard to one side or the other. What we have to do is ask the people to take their own view and express it through the ballot box rather than through easy gossip and not using their franchise.

Mr. O'Leary:The best laid plans of mice and men.... The Members of the House who heard my contribution in connection with the report of the Joint Committee on Marriage Breakdown or who read the rather rambling report of it — part of the rambling at least was my fault — in the Official Report will know that I approach this problem with little or no enthusiasm. The proposed solution does not fill me with any great pleasure or joy. Members will remember that at that time I suggested that the referendum to amend the Constitution should await two developments. The first such development, I suggested, was that we should await the [1825] publication of accurate statistics with regard to the extent of this problem. I brought the attention of the House to the census which it was then proposed to take in April of this year. I pointed out at that time, and I reiterate now, that it seems to be a rather extraordinary and a very stage Irish state of affairs that we are proposing to embark on this most serious change in the Constitution without any adequate knowledge of the extent of the problem which we are proposing to correct or address. Proper statistics will become available as a result of the census, and I am glad the decision to proceed was taken in advance of that information becoming available. Irrespective of that, we are now faced with the proposals as they are here. They must be judged on their merits with whatever information becomes available. During the course of my speech I will give the House the benefit of my views in that regard.

The second matter which I had hoped would be corrected before the removal of the constitutional ban on divorce was the hoped for agreement between the three main parties on the need for the referendum. I had hoped that the question of attacking the problem of marriage breakdown would be approached on an all-party basis. Of course, I appreciate the difficulty for any political party and the particular psychological hang-ups of the main Opposition Party in this respect. They have been reared on a diet which for long has had as one of its nutritional elements the idea that co-operation with anybody is a sign of weakness. I had hoped that, with the emergence in that party of eminent deep thinking people like Senator Eoin Ryan, they would have developed their thinking to such an extent that a common approach to the problem would have been possible. I regret that is not so, and I am sorry to say the debate has been diminished by that fact because, irrespective of how we try to avoid it, and even with the best will in the world, there will be a trace of party political manoeuvring and posturing in the consideration of this matter which I find most objectionable.

[1826] Briefly I draw the attention of the House to a report in The Irish Times of 5 May last. An organisation had taken a poll on behalf of the newspaper on the voting intentions in the event of this amendment being put before the people. In the case of Fianna Fáil supporters, 49 per cent intended to vote for and 46 against; Fine Gael, 66 per cent for and 30 per cent against; Labour 54 per cent for and 44 per cent against.

These figures raised a number of surprising things. First, there is a majority in favour in every party compared with the numbers who expressed an intention to vote against. That is very significant. Also it is of extreme significance that though the intended voting margins within Fianna Fáil are quite narrow, they are surprisingly narrow, too, in Labour.

In regard to the politicisation of the referendum and the unfortunate consequences which I expect to flow from it, surprisingly of the three parties Fine Gael, I suppose traditionally the most “morally conservative” party, showed more than a two to one intention to support the amendment. In Fine Gael there exists a substantial body of opinion, represented by that 30 per cent, who disagree with the proposal to delete the ban on divorce. That is well represented in the Fine Gael political structure by people like Deputies Cooney, Alice Glenn, Michael Begley, and Oliver Flanagan, and Deputy Michael Cosgrave has been mentioned in that regard — I have not heard his opinion from his own lips. There are many others of whom Members will be aware. I think that is good: if anything, that group within Fine Gael tend to be under-representative of the population in regard to the voting intention of Fine Gael supporters of whom 30 per cent intend to vote against. There is a substantial body of Fine Gael supporters who believe in that way, and they are being given every opportunity — I would not say encouragement — to express their views. It is only right and proper that should be the case.

The latitude the Taoiseach intends to afford to the Minister for Education in [1827] this regard is correct. It is a very positive sign of the relationship between members of the same party that, even in the delicate situation that must exist in any Cabinet, there is a capacity to cater for personal views.

In regard to the Labour Party, the position is most interesting. To a certain extent, I think they have failed their members in this regard. It is long established Labour Party policy to move in the direction of granting divorce and it would not be an exaggeration to say that in that party there always has been a hard core of people who are in favour of retaining the ban and it is fair to say they have not been afforded the same opportunity of dissent as in the Fine Gael Party.

Therefore, it is very instructive to see that 44 per cent of Labour supporters at that stage intended to vote against. It shows a lack of political sensitivity and judgment on the part of the Labour Party not to recognise that fact, and in that regard the Labour Party have misread the situation in regard to their supporters or, alternatively, having read it correctly, decided to ignore it. In the Labour Party there must be room for people like Deputies Seán Treacy and Frank Prendergast who have their own views on this matter and I do not think it would be in the best interests of democracy that they should feel isolated in any way from the mainstream.

When I come to the Fianna Fáil Party words fail me. The official Fianna Fáil position is one of neutrality. The contributions of Fianna Fáil Members of this House have been, by and large, well balanced. They have shown a considerable degree of maturity. However, it would be wrong to say, or not to acknowledge, that behind the scenes in Fianna Fáil every attempt is being made to galvanise opinion against this amendment; every attempt is being made to organise parliamentary business in such a way as to embarass the Government in regard to the amendment.

Mr. E. Ryan:I would not say that.

[1828]Mr. O'Leary:All I can say is that I am more in touch with the Fianna Fáil Party than the Senator. I think there has been a deliberate attempt by the Fianna Fáil Parliamentary Party to try to manoeuvre the Government into a situation in which, on the one hand, they would not agree to the parliamentary programme which would enable the Government to put this matter to the people before the end of June; but, on the other hand, they would not oppose it in such a way that it could be pointed out afterwards that they had been obstructive.

The extraordinary behaviour of the main Opposition Party in refusing to put down amendments in Dáil Éireann showed a kind of fear of contamination with this problem which did their position no great justice. I was waiting anxiously to see whether amendments would be put down in this House where they might feel the danger of acceptance would be less. But, knowing as I do the skilful political judgment of the Minister for Justice, he might well decide to accept one of them and return to the Dáil and take the chance about the later date. The main Opposition spokesman on 14 May 1986 in the other House, was willing to wound but he was not willing to kill. He was not willing to put his amendments where his mouth was. He was not willing to improve the Bill. He was just willing to criticise it. I think this is ample proof of the justice of the allegation which I was making against the main Opposition Party.

Professor Dooge:On the order of the House, the request was made that we should suspend the sitting from 5.30 p.m. to 6.30 p.m. to facilitate Members and also to facilitate a meeting of the Committee on Procedure and Privileges. At the same time, I had discussions with the main Opposition group and the suggestion is that we should suspend the sitting now from 5.30 p.m. to 6.30 p.m. and we should return and complete the Second Stage of the Bill tonight. My personal wish would be that we would then proceed to Committee Stage, but in deference to the wishes of the principal [1829] Opposition group I am content that that be left until tomorrow. However, this is on the basis of the agreement which has been given that all Stages of this Bill and all Stages of the consequential Electoral Amendment Bill will be passed tomorrow.

Mr. E. Ryan:On the Order of Business, if the debate does not continue for more than another hour I think that situation could be reconsidered.

Professor Dooge:I am afraid Senator Ryan is corroborating the remark that was made about him some time ago. It is his own party who have made this wish. I had suggested that advantage be taken of the fact that we are gathered here this evening to make as much progress as possible.

Mr. E. Ryan:It looked earlier on as if the debate was going to go on for some considerable time, but that may not be the case.

Professor Dooge:Within the last half hour the representative of the Fianna Fáil Party made that suggestion but let us adjourn until 6.30 p.m. and then see what is the position.

Sitting suspended at 5.30 p.m. and resumed at 6.30 p.m.

Mr. O'Leary:Before the break I was speaking about the political dimension to the problem. Prior to that I had mentioned the names of a few people who had expressed concern and doubt about the problem. I stated that in regard to the three parties the position of their supporters, as disclosed in the poll in The Irish Times, did not easily reconcile with the attitude of the parties. I commented more favourably on the Fine Gael Party in this regard than on the other two. I had dealt with the position within Fine Gael and Labour and I was dealing with the position within Fianna Fáil. It is extraordinary that in a party like this where 49 per cent of the support of that party indicated its intention of supporting [1830] the referendum, the overwhelming majority of the Members of the party in the Oireachtas should express views so couched in language which leave people in no doubt as to their position in this regard. The balance of opinion in the Fianna Fáil Party does not in any way represent the views of their supporters. That is a pity. I was also referring to the fact that, while the attitudes within the Fianna Fáil Party in this regard, on the surface is one of neutrality, behind the scenes every attempt is being made to galvanise opposition to the referendum.

I should like to draw the attention of the House to the failure within Fianna Fáil, by and large, to identify those who are in favour of the amendment, the attempts to frustrate the Bill and the spending of time in delaying the Government measure. Above all, there was the extraordinary speech by the spokesman for the Opposition in the other House, where, at column 828 of the Dáil Official Report, dated 14 May 1986, he listed nine main implications of the text as proposed. I propose to deal with some of these later on. Various allegations are made concerning the succession and inheritance rights of both the spouse and the children. These allegations in my opinion, are not justified by law. On examination of the facts, they are unnecessarily provocative and may be the cause of unnecessary worry to those who may be affected in the event of the amendment being carried.

During the course of my contribution, which will be brief, I propose to deal with these matters. That speech by the Fianna Fáil spokesman, as disclosed at column 803, supports my view that their position goes far beyond the neutrality which the party professes. The absence of their party Leader from the debate in the other House is a further indication of this. Members of the Fianna Fáil Party will know that there is no such thing as a free lunch. Their attitude will come back to haunt them. The lack of intellectual independence within the party is the single most inhibiting factor in the pursuit of their political ambitions. The way in [1831] which the Members of the party are inhibited from expressing their views has meant that they have become dependent on a Leader who, to use the most charitable expression I can, is something of a political liability.

Regarding the religious dimension of the matter — those Members who heard my contribution on the report of the Oireachtas Joint Committee on Marriage Breakdown will remember this — that I do not believe there is any proper religious dimension with regard to the consideration of the question of the introduction of civil divorce. The fact that Members of this House, and Members who have spoken in the past on this debate, have emphasised the position of minority Churches on the question of the availability of divorce in the event of marital breakdown does a considerable disservice to the argument. The position of the minority Churches with regard to the availability of divorce is of no greater relevance than the position of the Roman Catholic Church. The proper way to examine the question of whether divorce should or should not be available should be based exclusively on what is for the common good of society.

The position of the Catholic Church is something which I should like to examine briefly. In doing so I recognise that I am taking the position of one Church, examining that and ignoring the positions of other Churches. I do not do that in a spirit of antagonism towards the people I am leaving out, or the people I am including, but in recognition of the dominant position of the Catholic Church in the religious life of the country.

The position of the Church on divorce is clear and is accepted by me as a member of the Church. The Universal Church are against divorce. They consider it immoral and sinful. I have no difficulty or problem with that and, in spite of what certain Bishops may say, I do not think there is any problem in selectivity in that regard. Of course, the amount of the sinfulness and the immorality must in any individual case be related to the circumstances, but, as a [1832] general principle, the Universal Church are against divorce and I support that. That is not the same thing as saying that that is the position of the Church on civil divorce.

During his contribution earlier today the Leader of the House, Senator Dooge, quoted extensively from the documents of the Second Vatican Council. It is fair to say that these documents, when brought together in their entirety, can be summarised as follows. The position of the Catholic Church on civil divorce is that it must be viewed against the background of the common good. It is not a position of complete and absolute opposition, but it is a position where the circumstances of the case must be viewed against the background of the common good. Within the Irish Church, which is not necessarily the same thing as the Universal Church, there are three separate trains of thought with regard to divorce which I have identified to my satisfaction. There is what would be conveniently called the extreme right, which is a rather crowded place, and includes at least one Bishop, who consider it morally wrong for Catholic legislators and voters to suggest or support the introduction of divorce. I believe that is a rather eccentric and unsustainable position and it is not one to which the main body of the Irish Church gives much credence. On the other side — and there are fewer people here — there is another fringe element which would state that it is the duty of the legislator — and this also may include one Bishop — to ensure that the common good is implemented, even if that means the introduction of divorce.

The problem arises with regard to this proposed amendment as to where the vast bulk of the Church lies and, in particular, where the vast bulk of the institutional Church lies. The vast bulk of the institutional Church, recognising as they do the the primacy of the Universal Church and recognising the decisions of the Vatican Council and their validity, pay what I could only call lip service to the concept that the crucial and determining factor in deciding on a matter such as divorce is the question of the common [1833] good. In reality, the identification of this common good as the sole and proper criterion is confused by the addition in the same document, and in close position with that general statement, of a dissertation on what the moral position of the Church is relative to divorce itself, not relative to civil divorce.

It is the duty of those whose responsibility it is — if they feel they have that responsibility — to say what the position of the Church is and to put that position in a clear enough fashion so that it becomes plain to the ordinary citizens who are far too busy to examine the minute details of any document with which they may be presented. It is their duty to ensure that that document is structured in such a way as to make perfectly clear the distinctions between the moral position of the Catholic Church relative to divorce and the position relative to civil divorce. I worry about the manner in which it is proposed to run this campaign relative to the position of the Catholic Church.

It is not good enough that documents should be issued, whether in the tens of thousands or in their millions, which would confuse the concept of the common good with the authoritative teaching of the Catholic Church on the moral position and would not make perfectly clear for the ordinary people the distinction between both. The Church must not state their message in such a complicated and confused way as to mislead the general public. The Hierarchy's view on the value or otherwise of civil divorce has no greater weight than the strength of the arguments supporting it. They are not appointed directly or indirectly by God to advise a free people on what should be the civil law. They are, of course, entitled to express their view, but that view is not sanctified by their position but only sanctified by the logic and the merit of their arguments.

The struggle of man to reach his full potential as a free thinking individual created by God includes the questioning and, if necessary, the setting aside of the accepted view of those in authority. That is part of the process by which man develops as a free thinking being. It has, for [1834] example, included in the western world the sweeping aside of what was known as the divine right of kings and its replacement by democracy. When I mentioned this concept to a good friend of mine today, he suggested that I should add — and it gives me pleasure to do so — that it was rather late in the day that the Catholic Church recognised the transition from the divine right of king to democracy as a legitimate development of the free thinking spirit of man.

The struggle of man to reach his full potential must also include the setting aside of theocracies and the establishment of a civil society not dominated by religious dictates of the Hierarcy of the dominant faith. Members will, no doubt, have seen the pathetic sight of a chief Minister of an Indian-State submitting himself to the jurisdiction of a religious court in respect of its civil action as recently as last week. Are we also to submit ourselves to a religious jurisdiction in the matter of civil divorce? Are we, metaphorically speaking, to wash the feet of our religious leaders over our civil divorce proposal? I must put it to the House that, what rankles with these people, is that their exclusive right to terminate a marriage is being challenged. In that I give due weight to their views, but only in so far as they have civil legal or civil moral justification.

I should like to refer briefly to the nature of the proposal. The proposal contained in this legislation to go before the people is as moderate as is possible, and I say that as someone who instinctively feels uncomfortable with any proposal of this kind. The proposal to postpone the possibility of the dissolution of marriage for a minimum of five years after the marriage has taken place is among the most significant of the proposals. With regard to divorce in other jurisdictions the danger time is in the early years particularly where people have married mature in age but immature in emotions. The period of five years, which is compulsory, will mean that people will be that much more mature in their emotions before the possibility of divorce arises. It [1835] means also that, apart from the exceptional case which I hope will never arise where the High Court will give permission otherwise, no person under 23 years of age will be divorced in an Irish court. That is right and proper. It is necessary that the maturity needed for marriage would be even added to before the serious step of dissolving a marriage can be taken. That is a moderate proposal and the concept of failure of marriage plus the qualifications that can be added by law are designed together to make this as modest and moderate a proposal as it could possibly be.

I will refer briefly to the property implications of this with a certain distaste because I do not like to see the matter of divorce being reduced to the level of a property transaction. Since people outside this House — I have to decide that it is people outside this House — seem to be obsessed with the question of property, not recognising that very often what you are dividing is nothing anyway — it is necessary for us to address ourselves to that problem. Nine qualifications were expressed in the other House by Deputy Woods, main Opposition spokesman, and listed in the Official Report of the Dáil of 14 May 1986, columns 828 and 829, volume 366. I quote from column 829:

7—The succession or inheritance rights of a spouse and children of the first marriage are left unprotected and are transferred to the second family.

That is not a true statement. However, even it was true, it would be quite dishonest of him to make the point. There are no constitutional rights of inheritance. Every right of inheritance is contained either in the common law or in the Succession Act, 1965. Therefore, to say that in the event of divorce there is no inheritance right, even if that was a true statement which it is not, is to suggest in some way that there is inherent in the Constitution and in what we are changing an inheritance right which is being disturbed. Of course, it is open to any Legislature to infer that, for example, the [1836] natural children should have inheritance rights as, of course, they should. It is within the right of the Legislature to decide that and, no doubt, this Legislature will in due course so decide. That does not require a constitutional amendment. If there was no inheritance rights in respect of the first spouse or of the children of the first marriage, then similarly this House would have a perfect right to make whatever arrangements it thought fit during the course of the consideration of divorce legislation.

I fail to see how the children do not keep their succession rights. The succession rights of children are, indeed, paltry anyway. They are contained in section 117 of the Succession Act, 1965, except in so far as they relate to the question of intestacy, when there is no will. What they mean is that a child can make an application to a court on the basis that he or she had not been justly treated by his or her parent. I will read from the section:

117.—(1) Where, an application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.

I fail to see why the child referred to should be limited to the child of any marriage at all in the first place — that has not been properly tested but I think it includes the child of a dissolved marriage. As to what appropriate provision should be made concerning the first spouse during the course of the passing of divorce legislation is a matter for the legislation. The constitutional amendment, if passed, has no relevance in that regard.

I quote again from the nine objections listed by Deputy Woods:

6—The proposed amendment provides no protection for assets or any source of income, for example, a shop or farm, which may belong to, say, the husband, but which was built up over [1837] the years by the mutual efforts of both spouses.

I note with satisfaction the conversion of the Fianna Fáil Party to the concept of joint matrimonial property and I have no doubt that legislative procedures can be enacted which will satisfactorily extend this concept to include not only cases of divorce but also cases of all other accretions of property as a result of the joint efforts of spouses. This is nit-picking of the worst kind and does no justice to the very real social arguments which exist concerning divorce. It was, of course, open to Deputy Woods, if he felt that any such provision was appropriate in a constitutional amendment to put down an amendment which would cater for those problems.

I do not intend to go through the remainder of the property problems in any great detail other than to say how impressed, I am sure all Members of the house were — as I was — with the excellent dissertation in that regard by Senator Catherine McGuinness during the day. She answered adequately the case which had been made concerning property rights in so far as it was relevant.

We are not left with the problems of how we should introduce divorce legislation. They are all matters which this House is well capable of deciding in due course. We are left with the one central problem as to whether divorce legislation is for the common good. As I explained at the start, I regret the decision to proceed in advance of sufficient information being available, believing as I do that the right to a divorce is not an absolute right. I believe that the right of society to legislate against divorce is not an absolute right either. There are two conflicting rights, one the common good of society and one the general feeling that divorce legislation might have an effect on other marriages, even though some people deny that. That must be balanced against the objective of giving the maximum freedom to the individual to live out his or her life as he or she thinks fit. In the balancing of those two things one must take into account the frequency with [1838] which marriages break down. As I explained in this House on the last occasion, if only one marriage in this country had broken down, I do not think anybody would come into this House and say that that person has an automatic right to divorce. I think the general feeling would be that the good of society would be best served by not catering for that one case. If 20 per cent, 30 per cent or 50 per cent of the marriages contracted in the last ten years had broken up there would be different social considerations and a different set of criteria to balance. I find it very difficult to decide on which side to come down. For that reason I look forward to a sensible discussion on all sides free from the rancour of party politics if possible and from the misrepresentation of religious principles as civil diktats.

I look forward to a sensible consideration of the various problems and a balancing of the various interests before deciding which way I will vote in the referendum. We owe it to the country to do that. Many people who have still to make up their minds will be put off and will decide to vote in favour of this amendment if the case is presented in a dishonest fashion, by the Roman Catholic Church in particular, because a stage will be reached where it will be more important to give the proper answer to that Church with regard to its position in Irish society. That answer might be more important than the very fine arguments which might exist on the one side or the other concerning the question of this being the right time time to introduce divorce. The debate in this House has been very constructive, but in the wider context of the country I appeal for a balanced debate so that on the last days of June we can arrive at a sensible conclusion taking account of the best interests of citizens in general.

Mr. Smith:I reject the allegation and assertion by Senator O'Leary in the preamble to what he said this afternoon in accusing Fianna Fáil of trying to galvanise opposition to this amendment. He was [1839] in the House earlier today and had the opportunity to hear Members from this side expressing views which make nonsense of his claim. However, since this House has debated this matter in a very serious and objective way I have no wish to continue any dialogue across the floor with Senator O'Leary beyond saying that he could have tried to conduct himself a little better. The Senator has little problems in that regard and I am prepared to be as generous as possible towards him.

So much of the happiness of human life may fairly be said to depend on the acknowledged strength of stable marriages in Ireland that it is no wonder the continuing debate on whether divorce legislation should be introduced here has created some alarm and invaded the hitherto sanctity of traditionally held views on marriage. The question, therefore, as to whether the compelling case being put for the introduction of divorce in this jurisdiction would have, if passed, the evil effect on the future stability of marriages that many people fear should be seriously addressed.

For the past number of years this debate has dominated the headlines and it was inevitable that the process of cultural change which has taken place in the past 20 years would centre, sooner or later, on this issue. It was a predictable outcome of the tendency towards secularisation. It would be a mistake to see secularisation as a process which is necessarily hostile to the Christian faith. It could very well be in the interests of the State and Church to be seen by the public to be operating within their own domains with the minimum interference with each other.

The Catholic teaching is that divorce is wrong but the Catholic Church must not appeal to the State on those grounds only. The State is a secular institution and must frame its legislation on the grounds accessible to all citizens whether Catholic or not. The question to be addressed is the public status of marriage and the family. It is a matter of such importance for all that the State should not do anything [1840] which would have the effect of undermining it. Should divorce, therefore, and the merits and arguments in regard to troubled marriages be resisted at all costs? Should the many hardship cases which would hope to benefit from its introduction be ignored? Should we not be concerned for the victims, the innocent casualties of perhaps wrong decisions, victims of soured relationships suffering in miserable homes? If two people make a valid marriage at a very young age and it turns out to be a bad mistake, are they to live with that all their lives? Are normal, decent people who are completely incompatible and despite their best efforts cannot make a go of their marriage to be locked together in mutual misery? Should the pretence be kept up?

If a woman, for instance, is a victim of physical or mental cruelty, if her husband drinks too much and beats her regularly, if life for her and her children is a prolonged agony, what is the point in putting up with that? The tragic but relieving option of separation is available and legal separation deals with issues like maintenance, property, custody of the children just as effectively as divorce. The real problem is the right to remarry. Many people hold the view that with the introduction of divorce, marriage would become a provisional and temporary arrangement. Many people view the stance of the Catholic Church as hard and uncompromising, particularly the person in trouble with his or her marriage. Looking at it from the point of view of the common good, it is a conscientious determination to protect people, including children, from the spiral of marriage disintegration. The Houses of the Oireachtas and the people are being asked in the forthcoming referendum to decide whether it is better to preserve the principle of the indissolubility of marriage in civil law or to introduce laws which would dissolve marriages. We all can put on record here that there is no ideal solution to marriage breakdown. If there was it would have been found elsewhere and before now. Marriage breakdown has to be recognised as a growing problem that will not go away. Increasingly, and [1841] regrettably, exposure to world influences, together with economic and other pressures, has thrown up situations where many marriages are on the rocks and many couples are locked in deeply unhappy unions. However, in the context of all marriages they form a small minority of cases but they are people in need of help, compassion and support.

I welcome the statement of intent by the Government to introduce supporting legislation. It is important that the legislation with regard to conciliation, mediation and family courts is introduced whether this referendum is successful or not. It is high time we got away from theorising about this problem and did something positive to try to prevent these difficulties. It may be that the provision of these services would eradicate or reduce the number of problems developing in this area. It will not be of help in cases that have long since gone beyond the stage where these services could be effective. Those who suffer from the trauma and tragedy of broken marriages should not be thrown into the shameful, appalling and unfeeling circumstances as the present court establishments present for them when they are in difficulties.

Despite the concern we have expressed for the family we provide very cruel insensitive legal machinery to cope with intimate sensitive relationships and human problems. For many people going into court is a traumatic experience, but cases of a most intimate nature require very sensitive, private and careful treatment. We need to move quickly on this and provide these services. It is also very important that pre-marriage counselling is developed and that the voluntary bodies who provide these services are supported financially. We have the ludicrous situation where up to now the age for marrying is 16. Nobody believes that a young person has developed to a sufficient degree of maturity to be able to enter into a lifelong and permanent union at that age. It is an age which would not allow them to inherit or purchase property and yet it is an age when they can enter a relationship which is to last for life.

[1842] Never before have the pressures on families been so great and never before has there been such a need for these supporting services. If divorce is introduced it will bring about a fundamental change in the concept of lifelong absolute commitment to marriage. Divorce is often presented as a new beginning and for this reason is presented as a good solution. There is no simple solution to the problem of a difficult marriage. For the person who must shoulder the responsibility of caring for the children there is the knowledge that the marriage can never be erased because it will live on in the children. Children, naturally, want to be loved by each of their parents despite the difficulties.

There is also the question of maintenance. For most of us it is difficult enough to afford to meet one's financial obligations in the raising of one family not to mind a second one. Therefore, the problems with regard to succession, however safeguarded in law — I recognise the point made by Senator O'Leary on this — can be painful. To many, where second families are created the onus will fall on the taxpayer to provide for and maintain them. There should be no equivocation by the Minister, and the Government, in relation to letting the public know what is involved in these areas. It would be better if we had a fair and open discussion on all these matters and treated them in a mature and forthright way so that the final issues may be put clearly to the people. I agree with the Senators who said there should not be point scoring. The making of a political football of such a sensitive issue should be outlawed particularly where very delicate judgments are being made on issues of public morality and where there are opposing and conscientiously held views. In accordance with the stated Fianna Fáil policy on this matter we will not be opposing the Bill in the Seanad but we will leave the decision to the people to be decided in a calm way.

Mr. Lanigan:We have had a reasoned [1843] debate on this, one of the most contentious issues ever put before the Houses of the Oireachtas. I do not have notes on this issue because what I am going to say is totally from my heart, my own impression, rather than being Fianna Fáil policy or my political view. Acceptance of this proposal, irrespective of the stand we take, will change the thrust of Irish society. There is no doubt that the concept of marriage will be changed if the amendment is passed.

I will be 25 years married this year and in those years there have been times when we had severe problems in our marriage and there have been beautiful times. After 25 years I can say that it is possible that if we went into marriage with a choice of getting out of it, we may have gone for the easy option on certain occasions. When I say that there were problems I am speaking from the heart, not in political terms but in terms of somebody who has had to live through the problems and joys of marriage. The joys and problems of marriage are enormous.

I do not think we should delude ourselves into thinking that if the amendment is passed it will not have enormous implications for society here. Three of my children who have a vote told me last night they will be voting “yes” in the referendum. My daughter, who is 15½ and very politically aware and has a rational attitude to what goes on in society, told me that she would not make up her mind yet as to which way she would vote if she had a vote. She said the referendum, if passed, will radically change Irish society and the attitude of young people towards marriage. It will change the course of Irish society. There is no one with any realisation of what life is about who will not admit that. The debate in this House has been reasonable and I do not think there has been much political point scoring. There are people who have very strong views on both sides of the argument. Thankfully, the people who are very much pro the passing of this amendment have not been excessive in their arguments and, equally, those who are [1844] against it have not been excessive in their language.

I have an enormous number of friends who have got into marital problems. People suggest that they should not have got married in the first place. Possibly that argument is the right one. I see people who are in impossible marital situation. The problems I am talking about are such that they do not bear description. One of the major problems I see as a public representative is not one of marital breakdown but one of non-marriage. Many people have now decided to be single parents. They decided to be single parents by choice. When I say single parents by choice, no one goes out with the intention of becoming pregnant. Nevertheless, as a local representative I see more single parent families looking for State benefits and housing than I do people in the established situation who have genuine housing needs.

Marriage was a sacred institution. Marriages was for life but will change totally if this legislation goes through. There are many people with tremendous problems in their marriages. They are coping but may change their attitudes towards marriage as a result of this referendum. There are people who are thinking of getting married and will say, on balance, maybe they should or maybe they should not because if it does not work out they can get out of the relationship after five years of breakdown. Divorce changes attitudes towards marriage.

When I go to vote, on balance, my feelings will be to vote for the legislation. When I say my feelings, I have tremendous reservations because there is no doubt that the sanctity of marriage as an institution is being downgraded by this legislation. Having said that, I am not denigrating the relationships which have been entered into by many of my friends. When I say many of my friends, I am talking about a large number of personal friends who have entered into relationships by foreign divorces which are recognised in Ireland and by foreign divorces which are not recognised in Ireland. They have entered into relationships which have been guaranteed by the Church and [1845] not by the State. I must say that I have no time for anyone who suggests that the Church and State should be different on this. The Church should not allow divorce, as it does in granting nullity. It knows very well that the State does not allow divorce or recognise the establishment of second relationships.

Senator Dooge in his very reasoned statement in this House referred to the Vatican II and what happened in 1963. He referred to Gaudiumet Spes. What he said was very reasoned but nevertheless, 23 years on we should look at the differences between then and now. The Church of that time is not the same as it is now. The Church has reneged on its responsibilities on many issues over the last 23 years. The Church has not given the direction it should have given. When I say the Church, I am talking about the Catholic Church of which I make no bones about being a member. Generally speaking, I do not disagree with its train of thought. The Church has not kept up to date with what people's needs are. To speak about Gaudiumet Spes is not relevant to the Church of today or to the conditions of today.

I have no notes, not because I have not taken the issue seriously but because too many people have quoted from too many documents which have been quoted selectively out of context. Because of this I felt there was little relevance in many of the quotations. To me, marriage is a sacred institution. We entered it as a lifelong commitment. If divorce is introduced here marriage will not be entered into as a lifelong commitment. Consequently, though everybody in the future will not enter into marriage thinking it is otherwise, there is a danger that many marriages will be entered into as temporary commitments. If the referendum goes through it will do nothing for marriages in danger, or those which have broken down. In certain instances, it may create a legal framework in which property might equitably be distributed, but the number of people who have marital covenants with property to distribute are very few.

Marriage has to be worked on. The [1846] debate that has gone on in both Houses on this extremely important issue has been balanced. There may have been excessive language used by a small number of people who were speaking straight from their hearts, people who had feelings far deeper than mine, because of their religious backgrounds or otherwise. Numerous Deputies and Senators with legal backgrounds have been suggesting that this legislation could be unconstitutional because the Consitution proclaims the sanctity of the family and marriage, and if we wrote a divorce provision into the Constitution there would be a contrary provision in the Constitution which would be unconstitutional. I am not sure. I am not a constitutional lawyer, but from what has been said by constitutional lawyers here, it appears to me that a number of constitutional lawyers will have a field day if this referendum is approved.

Fianna Fáil have been accused of sitting on the fence on this issue. We did not sit on the fence: each Fianna Fáil Member here and in the other House was allowed to express his or her personal viewpoint. In that expression of views they were speaking personally. That expression of views by Fianna Fáil people is being put to the nation and it will be up to the people to decide which way they want to go. I have been speaking to a large number of people on this issue, some of them who have been working for divorce legislation during the past 20 years, and they are adamant that this issue has to go through. Equally, I have been speaking to people who are adamant that the legislation would create major problems which would change Irish society totally.

I have friends who have entered into second relationships, some of which have been successful but some of which have not — second relationships have tended not to be successful. There are friends of mine who will dissociate themselves from my comments because they feel their second relationships have worked out. To get married is a human choice. We cannot legislate for success after that choice has been made. I do not agree [1847] with those who say this legislation will create a climate in Ireland in which people will be marrying with divorce in the backs of their heads. The legislation changes absolutely the choice of people.

As Senator Dooge said earlier, as Catholic legislators in a generally Catholic country we should not be Catholic legislators only for Catholic people. We must legislate for the generality of people. I agree with him. All I want is that when this comes before the people they will vote with informed minds, that they will not vote because I or Senator Dooge said something or because the Archbishop said something. I hope they will vote with a realisation of the implications of this major reform. It is the most major suggested reform which has ever come before the Seanad, carrying with it major implications for Irish society.

The debate began at about the time I got married 25 years ago. I would have suggested that divorce would be a way towards eliminating problems but after 25 years I appreciate that working to make a marriage work before you get into marriage and realising what you are getting into, are as important as having an easy way out. There are people who suggest that Fianna Fáil are taking a nonpolitical stand, that we are sitting on the fence. We are not sitting on the fence. Nobody has been stopped from saying exactly what they feel, nobody in Fianna Fáil has been stopped from expressing conflicting viewpoints and nobody in Fianna Fáil has been stopped from campaigning one way or the other in this debate. Some people have said we are adopting a neutral stand. We are not adopting a neutral stand. We are saying to the people that we are discussing this matter in a rational, reasonable manner, that if they want to listen to us, fair enough, but they must make the decision themselves. I sincerely hope that any contribution made in the Seanad or the Dáil will be taken into account by the people when they make their decision, but it is their own decision. In our individual contributions we may express our own feelings and the way we wish people to [1848] vote, but that does not mean that as a party we are sitting on the fence or that we are running away from our obligations as legislators.

We, in Fianna Fáil, as Members of this House, are making personal and sincere contributions and anybody who listened to Senator Fitzsimons today would know that. When the Senator makes contributions in the Seanad he speaks from the heart. He is one of the best contributors we have and anybody who listened to his concerned remarks in this debate would have to agree with that. His concern for those involved in broken marriages and for the children of those marriages is shared by many people throughout the country. He also told us of the happiness he has in his own marriage and in his children; but, like me, he recognises he is one of the privileged people.

I make an appeal that the debate in the next three or four weeks on this issue should take place having regard to the problems in Irish society, while expressing a concern for what could happen if this referendum is passed. That concern expressed by Senator Fitzsimons and other Senators is one shared by me. That concern is that marriage as an institution should not be entered into lightly and that we should not do anything that would diminish the major vow taken on entering into marriage.

The contributions from all Members in this House so far have been excellent. They have been about concern, not making the matter a political football.

I shall be quite frank about it. When I vote on 26 June more than likely I shall vote yes, but the debate has a long way to go yet. I realise that as a politician I should probably not say that but I have not yet made up my mind. For me this has been a learning process that is continuing and will continue until the referendum takes place. My present inclination is to vote yes but that could change because I have not yet been persuaded that the changes that will take place in Irish society as a result of a yes vote in this referendum will be anything but bad for Irish society.

In conclusion, I would like to thank [1849] Senator Dooge, Leader of the House, for the manner in which he organised the debate on this referendum. He has proved again that he is a worthy occupier of the position he holds. He has made no efforts to curtail the debate or to establish any precedent. We have gone along with him because he has been flexible. This is the most important debate that has ever taken place in this House and I thank Senator Dooge for allowing it to continue without any hassle.

In conclusion — I have said in conclusion three times already which sounds like a Fianna Fáil Party meeting — if the debate continues in the same manner as it started, people will recognise that the legislators believe in the enormity of the problem and the changes that might be made as a result of this referendum. Nevertheless, the legislators are giving their own private, personal and committed thoughts on this extremely important issue.

Senator de Brún, who will be speaking, has reservations about this Bill which should be listened to because, unfortunately many of those who draft Bills are not so well up in the Irish language as Senator de Brún. Senator de Brún will have very cogent remarks to make about the Irish version of this Bill.

Mr. McMahon:It looks as if the proposed amendment to the Constitution will be put to the electorate a month from now. Indeed, I know there are many people in the country who are holding their breath and awaiting the day. There are very many who fear the day. Many have other feelings regarding this matter.

Some would say Senator Lanigan is sitting on the fence but I take his remarks as sincerely uttered. As a leading politician, he has travelled the length and breadth of the country. He is accustomed to coming face to face with many tricky problems. This problem, as he stated earlier, has been knocking around since he was married 25 years ago. I am sure it has been a problem for longer than that. Despite that, Senator Lanigan finds himself in the position of not knowing how he will vote on 26 June. I am quite [1850] sure that is the position of many of the electorate who will be asked to cast their vote on that day.

I am glad it has come to a head. Perhaps when 26 June has passed we will hear no more about this thorny problem which has been so much to the fore, particularly in recent years. However, despite the fact that it has knocked around for so long, been the subject of so many headlines and has annoyed so many people, the vast majority of the Irish people have not directed their attention seriously to the problem. I wonder if a month will give them sufficient time in which to do so. I sincerely hope that the debate throughout the various constituencies will be conducted in the manner in which the debate in this House has been conducted over the past two days.

The vast majority of Senators took the debate extremely seriously and avoided playing politics with it. That is how it should be. It is not a political question. It is one on which the people should have a say. We must be careful to ensure that the people have adequate time to consider it before making a decision. The decision they are making is not only for the 70,000 or 100,000 people who are said to be involved. The decision will affect society more in future generations than in our generation. It is a great pity that people are being asked to make a decision that will affect generations to come. It is a great pity that other measures were not taken more seriously. When we in public life come across constituents with problems we interview them and look not only for a solution to the problem but for a cure. I do not think serious consideration has been given by anyone to a cure for marital breakdown. Divorce will not cure the misery of these 70,000 people.

I see divorce as the second mistake; the first was the marriage that perhaps should not have taken place. It is probably a near miracle that so many marriages are happy when one considers that, in all our years of schooling we hear little or nothing about preparation for life as a married person. The curriculum is orientated towards other things. Very few of [1851] those who come through Irish schools are told anything about the seriousness of married life. It is a great pity that Governments did not direct their attention to helping to prevent a marriage breaking down or to prevent a marriage that should not have taken place. It is sad that we are now taking steps to cure the misery suffered by about 70,000 people without knowing how much misery we are going to inflict on future generations.

I regret that yesterday one Senator in this House saw fit to attack the Irish Catholic Church for their decision to issue a million or so leaflets informing the people of the Catholic Church's stand on divorce. The Catholic Church has as much right as every other Church in this State to inform its people. I have to say a word in defence of the Church. I listened intently to as much of the debate as I could and I do not think any Senator defended the Catholic Church's right to issue that statement or, indeed, to reply to the statement made by Senator Ross. It is a pity Senator Ross did not give us the benefit of the stand of other Churches' on divorce. I was looking forward with interest to the Members of other religions in this House giving us the benefit of the stand being taken by minority Churches. Many of us have got the views of the Church in writing from the bishops and from other sources, but in the last two days Senators had an opportunity to put those views on the record. Instead one Senator saw fit to attack the majority Church for doing their duty. If they had not done so, many people would have said they were neglecting their duty.

Today, there was a great outburst of publicity in favour of passing the amendment. In fact, it was one of the biggest editorials I have ever seen in our newspapers; of course, I am referring to the editorial in the Irish Independent. This is a democracy. They are entitled to this, and I would not deny them that right, but it is a great pity that when people go into print they come down heavily on one side in a debate like this. They have a responsibility, a terrifying responsibility, to ensure that both sides of the debate [1852] are given. I hope the Irish Independent will take steps to put the other side of the argument. It is my impression that there is one section in this State who welcome the opportunity of enshrining in the Constitution the right of divorce, that is, the media. The Irish Independent today not only published what I consider to be the largest editorial I have ever seen, but the editorial was also given the greatest possible coverage on RTE this morning. That is their right, but a free press in a free country has a terrifying responsibility to ensure that they carry the news, and give both sides of the argument. I am sure they will do that, but I will not have another opportunity of saying this and that is why I am putting it on the record tonight. People usually know who writes the articles they read in the newspapers and everybody knows what Senators, or even Ministers, say, but do 100 people in the country know who wrote that article in today's issue of Irish Independent? I do not think so. Outside of people in the media, and perhaps a few politicians who may be close to the press, not 100 people could name the person who wrote that article. That is not the way I would like to see this debate continue. No matter what is said, where it is said or where it is printed I hope every other article written about this subject will carry a name.

Much has been said on this subject in the debates in both Houses. I am not going to be longwinded, but there are a few points I would like to make. First, I carry the message from many people in my area who do not know which way to turn. I hope that over the next four weeks there will be a calm debate and that people will direct their attention to this issue so that when they cast their vote on 26 June they will do what they consider to be the right thing.

Of course, there is misrepresentation on many sides. It has been said that if there is divorce it will take X number of people out of their misery, help them to start life again and remarry, but if they are members of a Church there will be difficulty in remarrying. Let us not forget that. If I, as a Catholic, seek a divorce —[1853] God forbid — I cannot think of remarrying if I want to remain a loyal member of my Church. The same goes for the Church of Ireland. We are not enshrining in the Constitution a provision which will enable legislation to be passed to take all these people out of their misery.

Much has been said about the rights of the first family being passed to the next family and I have read what the Minister said in the other House about this. Many people are wondering how one spouse who has the responsibility of providing for a family — a wife and a few children — can continue to provide for a second family, a third family, or perhaps a fourth family. Some people may think that I am exaggerating, but does it mean that a person who gets a divorce, remarries and has another family would be expected to provide for two families or three if he gets a second divorce?

There has been a great deal of talk about the miserable situation in which many children find themselves when their parents separate. Those children will not have an opportunity on 26 June of saying whether they will favour divorce. They will be too young. I do not want to give the impression that all of those 70,000 people will vote in favour of divorce. I and I am sure many other politicians have met with husbands and wives of broken marriages and probably their experience is much the same as mine. I meet with mainly the deserted wife rather than the husband because the husband leaves the house and goes off somewhere else perhaps to seek another marriage or whatever. I find that the majority of those who have come to me over the last six months or so are not in favour of divorce. They are opposed to it because they fear what is in it, because it will relieve them of nothing except perhaps the husband whom more than likely they will never see anyway. They fear for their future economically. They feel that the deserted wife's allowance they get now will no longer be theirs and they do not know what the future holds. Therefore, many of them are opposed to divorce on economic grounds.

Over the couple of weeks of this debate [1854] we have been reminded of recent surveys carried out here as to whether the proposed amendment will be carried, and the polls indicated that a considerable majority would favour its carriage. Many would say that that is the reason it has been brought so swiftly before us. If a poll were taken of those 70,000 or so people of broken marriages what would they say? If contact was made with the children of those broken marriages, what would they say?

I have had some contact with people in England where divorce has been in force for a considerable time. I went to the trouble this evening of telephoning the principal of a post primary school there with a roll of 200 students of whom 110 come from broken homes of one kind or another, mostly through divorce. I asked the principal what her impression was of those 110 students as against the other 90. She thought for a moment and then said, “Broken up, sad, distressed, and lack concentration.”

Have we given any consideration to that side of the measure we are proposing to take? Have we considered the human element of the children whom we are supposed to be releasing from their misery? Has any survey been done in Great Britain or on the Continent of the result of divorce for future generations and for the children who are the first of those future generations? That principal told me that she has one child in class whom she must watch on a particular day each year and it is the anniversary — this year the 11th — of when her parents parted. That child cries bitterly on that anniversary each year. Although I had not been in contact with that teacher previously she had put a question to the class as if she had anticipated my telephone call today. The children are 13 year olds who would be first or second year in post primary school here. I forgot to ask her the age over there for that. She said, “If God was to give you something today to make you happy, what would it be?” She did not give them two minutes to think, she simply asked the question and the children in that class of broken homes or divorced parents answered, “A [1855] united, happy family.” That was completely off the cuff.

I am saddened that we have given so little attention to these children despite what has been said, despite the compassion of churchmen, politicians and leaders of all descriptions and individuals who will be voting on 26 June. Insufficient attention has been given by successive Irish Governments to building up the family rather than breaking up the family. Many Government measures taken during much of the time I have spent in the Oireachtas have been against the family. We have the responsibility of ensuring that we have a society which is better than society in other countries. The comparison has been made very often this week. Why should we not pass this legislation? We are the last country in Europe to allow divorce.

Minister for Justice (Mr. Dukes):That has never been advanced as a reason.

Mr. MacMahon:It has been advanced by many people who are not politicians.

Mr. Dukes:It has never been advanced as a reason.

Mr. McMahon:I heard it on television the night before last. It was one of the reasons. I have heard in private discussions that we are the only country in Europe and nearly the last country in the world not to have divorce. Even Spain and Italy, Catholic countries, now have divorce, so why should we not have it and why should we be different. What is wrong with being different? Must we go with the tide?

Mrs. Bulbulia:Human nature is the same the world over, that is why.

Mr. McMahon:Why should we in Ireland not be different? Has anybody stopped to think? Is life too fast for politicians as well as for others? I hope that the debate will be calm, that all aspects will be considered and that those in favour of divorce in putting forward [1856] their points will bear in mind that there is another side to it.

Of course, many people are living in terrible distress because of marital breakdown, but I have yet to be convinced that divorce will solve their problems and that in permitting it we are not creating more problems than we are solving. I hope that I — like Senator Lanigan — will be able to make the right decision on June 26. If the referendum was today, I am quite convinced as to how I would vote. I cannot see much that will change my mind in the meantime, but I have an open mind to arguments on the other side. I appeal to all who take part in this in the media, politicians, church people and so on, to calmly put their point of view and consider at all times that there is another strong point of view to be considered. If they bear that in mind and keep an open mind we will have a calm debate and I have great trust in what the Irish people will do on 26 June.

I wish to quote from a booklet written by Bishop Cassidy of Clonfert, a Bishop who expresses the point of view of the Hierarchy. He is the PRO, as it were, of the Hierarchy and he speaks to a great extent on their behalf. Appropriately enough, the booklet is called When the Wind Died Down. It could well be said that the wind is about to die down, at least in the Oireachtas on these matters this evening. If I am the last speaker in that moderation perhaps I should feel privileged. It is a very interesting booklet and I feel I have a duty to quote from it in view of what Senator O'Leary said in all good faith. He is entitled to his opinion, but it is only right and just that the other side of the picture be put also. I [1862] quote from paragraph 5 which is headed “Considerations for Legislators”:

It doesn't follow of course from what I've been saying that Catholic teaching on marriage should be enshrined as such in civil law.

That seems contrary to what is being said here.

Catholic teaching is one thing. Civil law is another. They do not necessarily coincide. Legislators must try to legislate in the best interests of all the people, and apart from the teaching of their Church, which they should take very seriously, they have a variety of considerations to keep in mind. Again, as we point out in Love is for Life, they have to consider the convictions of those who are not Catholics and those who do not accept Catholic teaching. They must try to give people the maximum of individual freedom that is consistent, not only with the rights of others, but with the common good. They have to aim at creating a body of laws which, as far as possible, favours reconciliation between citizens and communities. One has to have sympathey for legislators. Their task is not an easy one. They have many things to keep in mind at the same time. In dealing with a problem like marital breakdown they have to try to help some without harming many more. They have to approach the problem, not in isolation but against the background of the common good. Indeed, their priority as legislators has to be the well-being of society as a whole. That inevitably includes a particular concern for the family based on marriage. I say that with considered conviction, because the family based on marriage is the primary, basic cell of society. It is the vital, crucial unit on which the health of the community depends.

The Bishop goes on to talk about the role of the Church. It is very important to put the other side of the coin in so far as the Bishops and the Hierarchy generally are concerned. This is only fair and it is a [1863] duty on me to do so. I take great pleasure in doing it. The Bishop states that the Church's role is as follows:

It is clear from the foregoing that the Church's role in all this is not a dictatorial one. It is sometimes represented as such. It is frequently suggested in some quarters that what the Church really wants is a theocracy — or Government by Bishops and priests. This is not so. We made it clear at the Forum, and elsewhere, that the Catholic Church in Ireland totally rejects the concept of a confessional state. We have not sought and we do not seek a Catholic State for a Catholic people. We believe that the alliance of Church and State is harmful for the Church and harmful for the State.

The Catholic Church in Ireland has no power and seeks no power except the power of the Gospel it preaches and the consciences and convictions of those who freely accept that teaching. At the same time, the separation of Church and State, which we welcome, should never be used to separate Church and society. Then any Church would be emasculated, a sacristy Church, a prisoner of the pew, a Church of silence, in fact, denied her right and obligation to make the Gospel relevant to every facet of life.

The Church has a right and a duty to address itself to the common good. In the course of any debate she would have a two-fold function: (i) to teach the truths of the faith to her own members; (ii) to alert people generally to the moral and social implications of civil legislation.

Moral issues affecting the whole of society are raised by the question of divorce. We have a responsibility, as pastors, to offer moral guidelines to Catholics to help them form their consciences in regard to their moral responsibilities as legislators or as voters. No Catholic Hierarchy, anywhere in the world has failed to record its moral objection to the introduction of divorce or its extension —Love is [1864] for Life paragraph 187. The position of the Church is, then, very clear. There can be no question of trying to “run the country”. But there can be no question either of running away from responsibility. Perhaps I can best sum up the Church's role by recalling something I've said before. We have no right to dictate but we have no option but to teach. On issues which have moral and social implications, bishops have no right to be silent.

That is a very fair, useful and dutiful exposition of the point of view and the duties of an exponent and spokesman of the Catholic Hierarchy. May I add that I am not here to defend the bishops or the Hierarchy. They are quite capable of defending themselves, and in that booklet they expressed their viewpoint. That was not only their right but their duty. I would appeal for more broad-mindedness and fairness in our approach and assessment of their rights and their duties.

I said at the beginning that I would not be long-winded, but perhaps I have been more so than I had intended. However, in my autumnal years I can, perhaps, look back critically and concernedly about how our dear country has moved during my lifetime. I say that as one who has laboured dutifully to promote and instigate the best and the most sincere ideals for which this State was set up. In the early years I travelled the roads of Ireland establishing and advancing these ideals in every way I could. I look back and regret at times the trends that have developed during my life span. I regret very much the great and inestimable loss of our sense of values and patriotism and religion or, more correctly, our sense of Christianity. What it all is, is Christianity and good, sincere, honest living. That is what it should be, and that, perhaps, is what it is not at the moment. In the autumnal years of my life it grieves me that this is so.

In recent years we have heard a good deal about crusades and crusading on behalf of this or that. I do not seek to deny rights to anyone, and the Taoiseach [1865] spoke about crusading and crusades. That seems to have taken a back seat for quite some time, but I believe that the crusade we need in Ireland is on for the coming together of all parties regardless of political affiliation. I do not wear politics on my sleeve, never did and never will. I am talking about a crusade of all parties and all the people of the country, all categories, voluntary bodies, the whole educational system of the State, the various Christian Churches, the whole community, to crusade in an effort to restore balance and equilibrium, patriotism, loyalty, fidelity and a sense of cooperation — sinn féin ag cuidiú agus ag cabhrú len a chéile. Ní neart go cur le chéile.

What I said about crusading is that I believe the main need or the primary need of the country at present is an all-out collective effort to try to evangelise our country and our people and to lead them back on the road to basic principles of Christianity, patriotism, and faith in ourselves.

[1866]Minister for Justice (Mr. Dukes):I wish to thank the House for the thoroughness with which this Bill has been debated on Second Stage. It is no light business to propose an amendment to the Constitution. It is very clear that the House does not take it lightly and I can assure the House that neither I nor the Government take it lightly. For that reason it went a little ill with me to hear that Senator Ryan took the view that the fact that I was not here at the beginning of the debate indicated a casual approach to this Bill on the part of the Government. I found that sentiment a little unworthy and I was reminded of that feeling on the various occasions when the debate was proceeding before the empty benches on the other side of the House. I pointed out yesterday that it was another engagement with the Prison Officers' Association at their annual conference that detained me. Those who were present in the House yesterday seemed to be of a mind to forgive me for my absence. Members of this House will agree with me also that by her commitment the Minister of State, Deputy Fennell, is a perfectly appropriate person to introduce to debate in this House on the subject that is before us.

There are a number of preliminary remarks that I want to make before getting into some of the issues that have been raised during this debate. I am very grateful for the support of many Members of the House both for the principle of the Bill and for the approach in the Bill. I am grateful also to these Members who have teased out various aspects of the Bill but who have not arrived at a final conclusion as to what view they are going to take. I fully respect that as I also respect the views of those who disagree with the Bill. It will be very clear that I disagree with those persons but do not in any way criticise them for holding a different view from mine.

One thing is wrong with this debate. I look with some trepidation at Senator O'Leary when I say that — well, it is not with all that much trepidation because I have a fair amount of experience over [1867] the last three and a half years of disagreeing with Senator O'Leary. I do not agree with his suggestion that we should wait for the result of the recent census to tailor our action on this issue. Senator O'Leary is not the only one who takes that view. There are others in another place who say they take that view, but I do not agree. If anything, this debate should have taken place in the Houses of the Oireachtas many years ago. Looking back to 1937 one could say that if a different view had been taken then we might not have had to debate a Bill to amend the Constitution. We might have had to debate a Bill at an earlier stage but there is no point in speculating about what might have been. We have to deal with the present situation. If I may be forgiven for a little hubris in this matter, I regard it as a privilege to be a member of the Government who are bringing this Bill before the Houses of the Oireachtas and I regard it as a particular privilege to be the member of that Government whose duty it is to bring the matter through debates in the Houses.

Senator Ryan represented me as having said that the first family will not be materially affected by divorce. A great many of my remarks will concentrate on the issues that have been raised in relation to property and legalities, not because I think they are necessarily the most important part of the heart of this matter but because they are issues that will affect the way the electorate approach this when they come to vote and because there are a number of misapprehensions there that need conclusively to be relieved.

Senator Ryan represented me as having said that the first family will not be materially affected by divorce. I would have to ask the Senator to look at what the Minister of State, Deputy Fennell, said yesterday morning. On a more careful reading of it he will find that statement on his part is a misrepresentation.

[1868]An Cathaoirleach:I do not like to interrupt the Minister but would point out that we have three Senators called Ryan.

Mr. Dukes:Senator Eoin Ryan. What the Minister of State said was that the constitutional and statutory rights of the children of the first family will remain entire and unaffected. She dealt with the succession rights of such children and with certain likely changes in the material position of a dependent spouse who is divorced. In relation to statutory benefits that a wife would lose on divorce, it was pointed out that she would be entitled to different but equally valuable rights. I will develop that point a little later on. It was not suggested that her material position would be unchanged. It would be nonsense to suggest that any couple could separate without altering their material situation. Senator Eoin Ryan seemed to be suggesting it would be the introduction of divorce that would bring about that material change. That is not the case. It is a failure of the marriage and the separation of the spouses that brings about the change. Under the Government's proposals no divorce application could even be considered until the facts of marriage failure and long-standing separation, among other things, can be shown to the satisfaction of the court. The essential point I want to make is that it is not divorce that brings about that material change; it is an event in the marriage, a failure of the marriage and separation of the spouses that brings about that change. It is important that we should remember that during the course of this debate.

Senator Ross gave the Bill a rather guarded welcome. He contends that it would be simpler and cleaner just to delete Article 41.3.2º from the Constitution. I have already spoken about that and the Minister of State spoke about it yesterday morning. A simple deletion of that Article would run the risk that any subsequent divorce legislation might be seen to be in conflict with other provisions of the Constitution guaranting the protection of the family and marriage. That [1869] is the reason we have the kind of Bill that we have before the House.

We published more than a Bill. At the same time as we published the Bill the Government published a statement of their intentions with regard to marriage separation and divorce. Senator Mullooly suggested that in some way the Government have infringed if not the letter then the spirit of Article 46.4 by publishing that statement of intent. He contended that the type of divorce legislation that we would envisage — the statement covers a great deal more than divorce legislation — is not relevant to this debate. I cannot accept that. When it is proposed to the people that we make a change in our Constitution that would permit the dissolution of marriage, then it is a matter of perfectly proper interest to both the legislators and the people to discuss, at least in outline, what kind of legislation would be adopted on foot of the proposed change. Technically of course, the Bill is in conformity with the constitutional requirement since the Bill proposes only an amendment of the Constitution. The Government are obliged to give as full a picture of their intentions as they can. It will not be a detailed, complete and comprehensive picture, but the clearest outline the Government can give of their intentions with regard to the legislation.

The debate has underlined the correctness of that approach. The statement of intent has been criticised by some for being no more than that. It cannot be any more than a statement of intent. For example, we could not bring before the Oireachtas a Bill providing for specific rules in relation to divorce because the Constitution as it stands forbids us to do that. We cannot enact any other Bill unless and until the Constitution is changed.

The statement is held by others not to be relevant and therefore one not to be discussed. That view was defended with some vigour in another place for a different reason from the one that motivated Senator Mullooly. It was suggested that, since that statement of intent does not have legislative effect, we should close our eyes to it and look only at the [1870] Bill before us. That is a nonsensical way of going about a debate on an issue as important as this.

Other people — and they are by far in the majority — welcomed the publication of the statement of intent. You will forgive my bias when I say that those who welcome it are taking a sensible approach to the debate. Many of them asked for more information than is included in the statement of intent with a view to having a complete picture to assist them in making up their minds on the issue.

Some Members of the Oireachtas take the view that this is an issue which must be left for the people, allegedly taking no position themselves. I am not speaking of those who like Senator Lanigan have genuinely not yet made up their minds. I am speaking of those who have already made up their minds but do not wish to say which way they have done so. I cannot see that it is at all proper for the Members of the Legislature to say that this is a matter for the people and to take the view that in the final analysis it does not matter much what goes before the people for a decision as long as it is before them. We have a much more specific duty than that particularly in a case like this where the test that the people will decide on is one which has been discussed in the Oireachtas. We have to decide on what to put before the people.

Some extraordinary statements have been made about the alleged motives of the Government in bringing forward the Bill at this time. One Member of the House thought we were bringing it in to take the spotlight off other problems. Another thought we were bringing it forward to divert attention from economic issues. Another alleged that we brought it forward because we believe that most marriages are not working. Indeed, it was suggested that perhaps the Government brought this measure forward because we felt obliged to do so as we are the last country in Western Europe to have a divorce jurisdiction.

With all respect to the House, and that respect is indeed great, each of these allegations is simply too ludicrous to merit the trouble of rebuttal. The reason [1871] that this measure is being brought forward is that the Government have come to the conclusion, and many of us in both Houses and indeed many who were in both Houses when I was in short pants, have come to the conclusion that we should, out of our concern for people who are in impossible situations in marriage, bring forward a measure which, while not solving their problem will alow them a remedy that they do not have now. Perhaps by using the experience so bitterly gained once they will make a better decision which will enable them to get from life what they might want themselves and what their religion will often tell them they can expect from life and from the union of two people in marriage. Those are the reasons that we brought this forward.

There are varying statements about the consequences of the action that we have taken and I will deal with some of those. One in particular deserves some kind of a prize. Last night Senator Cassidy reasoned as follows. He said that we are told that some 70,000 people are involved in marriage breakdown. He said it is well known that of those involved in marriage breakdown 70 per cent remarry. Seventy per cent of 70,000 is about 40,000. Those 40,000 people will need housing so we will have to build 40,000 more local authority houses. Now is that a constructive or a sensible contribution to the debate on this Bill? That was probably the lowest point reached in the debate in this House and I am glad to say that it was no more than a momentary aberration.

Mr. Daly:Senator Cassidy is an entertainer.

Mr. Dukes:I thought, to put the tin hat on that particular argument, of doing the sum, but I am very suspicious about doing sums like that because you never know where the figure will end up, locationwise I mean.

A number of problems have been raised during the course of this debate, some of them false, some of them real. Senator Robinson rightly pointed out [1872] that most of the real problems already exist but that under the law as it stands they lack any effective remedy. That is a good starting point for a detailed consideration of the real problems.

I want to explain the process that would in some cases lead to divorce as has been set out in the Government statement of intent. First, we propose in paragraph 12 to make some changes in the grounds for legal separation. The grounds for judicial separation as the law stands are cruelty, adultery or unnatural practices. A number of recommendations have been made for an extension of the grounds for judicial separation by both the Law Reform Commission and by the Oireachtas Joint Committee on Marriage Breakdown and, having considered their recommendations, we propose to add new grounds — desertion, including constructive desertion, separation for three years or, where there is agreement between the two parties, separation for one year.

We also propose changes in the legal procedures for judicial separation. First, we propose that, in future, proceedings for such separation will be dealt with by a family court. To give reality to the family court we propose to add a number of members to the Circuit Court Bench. They would preside over separate courts to hear family law cases. They would hear the cases in camera and the court would be available at different locations throughout the country. The court, in hearing proceedings for judicial separation, could, if it felt it was a useful thing to do, adjourn the proceedings and suggest to the parties, if they had not already done so, to avail of the services of one of the groups who assist in trying to bring about reconciliation between those who are about to separate. There are groups who go further than that and, in the event that a reconciliation proves impossible, will provide assistance for the parties in mediation, that is, in arriving at an amicable agreement on the basis on which they will separate.

We have also quite deliberately provided that those courts will be at Circuit Court level because, as Members of the [1873] House will be aware, there is the possibility of processing business less elaborately at Circuit Court level. In particular pleadings can be made by solicitors at Circuit Court level.

There is general agreement that we should treat family law cases in an atmosphere that is as uncontentious as possible and tailor the procedures in our courts in such a way as to bring that about. On reflection, however, most people would agree that we cannot deprive people of the right to be represented in whatever way they want in the courts but, proceeding on the basis that we have set out in the statement of intent, we would give people the possibility of having family law cases heard in a less contentious atmosphere than is the case at present, and without necessarily incurring substantial costs. It is very important that we do that. Even if we were not talking of legislation to permit divorce, it is still important that we make some improvements in the way we deal with family law cases.

We also provide that the courts dealing with family cases would be empowered to make financial and property orders, a power that the courts do not have at the moment, because it seems there is a gap in our procedures which does not allow us to deal with one particularly difficult aspect of separation. By giving the courts power to make financial and property orders, we can make a more complete approach to the problem and the requirements of those cases where a separation is the outcome of the proceedings.

In particular, I would like to point out that, under the proposals we have outlined in our statement of intent, those separation proceedings, or a judicial separation, or a separation agreement made a rule of court, would be a necessary prerequisite before an application could be made for divorce. That too is important. This means that by the time the two parties arrive in court to talk about a divorce there already will have been judicial consideration of the terms on which they have separated, on the agreements they have reached, on the provision that is made for the dependent [1874] spouse and children and on the distribution between the two spouses of property, if property is in question. All that will have been looked at before any application can be made for divorce.

When the court is looking at an application for a dissolution of marriage, since we provide that separation must pre-date any divorce by at least two years, the court will be able to see how this arrangement worked over a period of two years. In deciding whether it is satisfied on the basis of the proviso in the Schedule to the Bill, the court will have some practical experience to draw on in such a case. It would be able to form a view as to how an existing arrangement worked out in practice and how the interests of the dependent spouse and children were dealt with. This is important because it means that not only the separating spouses will have seen how those arrangements work out in practice but the court, which must be satisfied on a certain number of points according to the Schedule in the Bill, will have seen in operation the arrangements we provide for in the case of divorce.

It has been suggested — not in the debate in this House but elsewhere — that the courts might find some difficulty in making financial or property orders. It is wise that we should provide, as we do in the proviso in the Schedule to this Bill, that the court should satisfy itself that adequate and proper provision, having regard to the circumstances, is made for dependent spouses and children and it is wrong to suggest that the courts would not be able to take account of all the circumstances. Nobody has suggested that our courts cannot take account of circumstances in some of the very difficult cases that come before them now, for example, in relation to compensation. The courts have shown an ability to get to grips even with such difficult concepts as compensation for loss of earnings, compensation for pain and suffering and compensation for many other things. I do not think I am being excessively optimistic in thinking that the courts will be able to deal with the kind of situations that [1875] face us in relation to both judicial separations and divorce on the basis of the provision that we have made in this Bill.

The matter of financial orders is dealt with in paragraph 13 of the statement that we published with the Bill. I would like to quote that paragraph to the House. It reads as follows:

The legislation will include provisions to enable the Family Court, on hearing an application for judicial separation or divorce, to make various financial orders with a view to ensuring that the interests of spouses and dependent children are adequately protected and appropriately provided for. These orders will relate to maintenance, lump sum payments and property owned by the spouses, including the family home. Consideration will be given to the recommendation of the Oireachtas Joint Committee that a dependent spouse should not be prejudiced in any determination of property rights by virtue of the fact that he or she gave up employment in the course of marriage to attend to duties in the home.

I think it is very clear, not alone that that will cover the situations that we want to deal with but that the courts will be perfectly capable of making the kinds of determinations that will give effect to those objectives.

I come now to the question of the granting of a decree of divorce to the dissolution of a marriage. The Bill, in the Schedule, lays down four conditions that must be satisfied before a court can grant a dissolution of marriage and, in addition, a proviso in relation to the provision for dependent spouses and children. Each one of the conditions must be satisfied. All of the conditions must be satisfied, and all of the conditions and the proviso must be satisfied. Therefore when we look at those conditions and the proviso, and at their cumulative effect — because they must all be added together to judge their effect — we can see that the conditions, the circumstances in which a dissolution of marriage would be granted, would very clearly be very restricted. [1876] Condition No. iv in the Schedule which provides that where the court is satisfied that “any other condition prescribed by law has been complied with” has come in for some questioning. It is very clear that prudence dictates that we should not take the view that at a given moment we have thought of everything that could possibly arise. Prudence would indicate that, even having set out the first three conditions here and the proviso, there might be other conditions we would want to take into account. There is prudence to leave ourselves the possibility of imposing other conditions. It is clear also that no other condition prescribed by law could in any way derogate from the requirements of the Constitution as amended. Specifically, no other condition prescribed by law could liberalise the system that is set down here in this Schedule. The only effect of any other condition that would be prescribed by law would be to restrict further the possibility of granting a dissolution of marriage. We have set out very clearly our intention there in that we propose that constitutionally a dissolution could be granted, only where a marriage had failed for five years or for periods amounting to five years, but in addition to that, we provide that there must first have been a judicial separation, that no divorce can be granted within less than two years of a judicial separation, and that in no case may a divorce be granted after less than five year's separation. All of those things which I have indicated restrict further the scope of the provision for divorce as set out in the Schedule, and it is clear that any other condition that might be applied at any future date would have to have the same character. It could not liberalise. It could only further restrict by comparison with the provisions in the Schedule.

Of course, there is another reason why we provide that no decree of divorce may be given less than two years after a decree of separation, or the acceptance by the court of a separation agreement. That is, as I said a few moments ago, so that not just the court but the parties themselves will be in a position to judge how the agreement on the basis of which they [1877] separated works in practice, so that parties themselves and, more important, the court will be in a position, when an application is made for a dissolution of marriage, to see how, in practice, those arrangements worked out. It is proper that the court should be in a position to do that.

I come now to the question of the constitutional rights of the first and second family. An argument was made in the other House and was answered there but has resurfaced in this House, concerning the constitutional implications for the first family arising from the amendment as it is proposed. The line of argument is generally the following: Articles 41 and 42 give constitutional protection to the family based on marriage. To discharge its pledge to guard with special care the institution of marriage the State has passed legislation, the Succession Act, 1965, the Family Law (Maintenance of Spouses and Children) Act, 1976, and other Acts, all of which protect the rights of members of the family. The claim is then made that once a marriage is dissolved the partners and their children will cease to be a family based on marriage, and the conclusion is drawn that, in the event of a remarriage, the first family will not merely lose the constitutional protection of Articles 41 and 42 but that any statutory rights afforded to that family are, in themselves, unconstitutional.

That argument, when examined, breaks down at every single point. There is no doubt that Articles 41 and 42 give constitutional protection to the family. One aspect of the importance of that protection is that it prevents the State from enacting legislation which would be in conflict with the principles set out in those Articles but, to the extent that those Articles enjoin the State to act, they are not stated in precise terms. Therefore, while it is true that such measures as the Succession Act, which I have mentioned, and the provisions of the Family Home Protection Act are in full accordance with the constitutional pledge to guard the institution of marriage, they are primarily rights granted by Statute. [1878] If those Statutes had never been passed it would be difficult to argue that those rights are inherent in Article 41. I have argued, and it has not been refuted, that if the Oireachtas were to decide tomorrow to repeal any of those Acts, that repeal could not be attacked as being unconstitutional, so that the rights, which most of us seem to have in mind, during the course of this debate, as founded on the Constitution are rights that are actually granted, in practice given by Statute. It is hard to argue that those Statutes are enjoined upon us by the Constitution. Rather it is the case that in looking at the Constitution and the specific things we want to do to give effect to it, at various times we have passed those Statutes.

The amendment now proposed will permit the dissolution of marriage, the dissolution of the relationship between the spouses. It does not follow that such a dissolution dissolves any of the rights conferred by Articles 41 and 42 on parents vis-à-vis their children or on children vis-à-vis their parents. The sole dissolution is that of the relationship between the spouses; the relationship of the children to the spouses remains unaffected. Parents remain parents after a divorce and that divorce cannot, in any way, diminish their inalienable rights or their duties in relation to their children. So, notwithstanding the fact that the marriage may be dissolved, the children of a valid marriage continue to have all the rights in relation to their parents deriving from Articles 41 and 42, and parents retain all the rights and duties in relation to their children, arising from the same Articles. The mere fact of the dissolution of the marriage does not alter that. Nobody has ever suggested that the dissolution of a marriage by the death of one party alters the constitutional rights or duties of the remaining party and his or her children, nor that the recognition of a dissolution of a marriage under the provisions of Article 41.3.3º, as it stands, can detract from or alter the constitutional rights or duties of the parties to that marriage in relation to their children.

I want also to point out that all the [1879] statutory rights which children have will continue after the dissolution of the marriage. Children will retain their rights under the Succession Act to succeed to their parents' estates on intestacy, to make application under section 117 of the Succession Act where their parents die testate, having failed to make proper provision for them. I would add in that connection — the matter was touched on during the course of the debate — the Status of Children Bill, recently published by the Government, when enacted, as I am confident it will be, will extend all those rights I have just mentioned, which were heretofore confined to legitimate or marital children, to non-marital children. Indeed, during the course of the debate I found a very heartening degree of comprehension in the House of the objective of that Bill, and a great deal of sympathy with what is being proposed.

It is wrong, therefore, to suggest that any of the statutory rights of children, to which I referred, could be regarded as unconstitutional. As the offspring of married parents and, therefore, members of families based on marriage, such children for the reasons I have already stated, will retain their constitutional rights under Articles 41 and 42 even when the ties between the parents have been severed. In addition — this is important — the children of divorced parents are being given an added constitutional protection under the Government proposal in that the court is required to be satisfied, before granting a dissolution, that adequate and proper provision is made for them.

I hope that rather brief exposition of the situation with regard to the various constitutional and statutory rights of children will have convinced the House that there is no foundation for the allegation that a dissolution of a marriage will, in any way, transfer constitutional rights from the family of the first marriage to the family of the second. In my view — I am not the only one who holds it and I do not take it only on my own analysis of the situation — there is no foundation for [1880] that allegation and that has been accepted in another place. The reason I insist on it is that, once it is accepted, that allegation should no longer appear in the debate. Unless my exposition can be refuted — and it has not been refuted — I will regard any reappearance of that allegation as being based either on ignorance, which is forgiveable and which I will do my best during the course of the next four weeks to enlighten, or on carelessness, which is unforgiveable in a debate as important as this, or on a deliberate intention to mislead, which is totally reprehensible.

I touched briefly on the question of the definition of the family based on marriage. What I have said is enough to show that that the dissolution of a marriage does not alter the status of the children of a marriage, as being members of a family based on marriage. To put the matter beyond doubt, I would point out that it has been held that, even where both parents are dead, the children of a family remain children of a family based on marriage. It is clear, following from that and from ordinary commonsense that, where one parent dies, a surviving parent and the children are a family based on marriage. If the survivor marries again there are two families based on marriage. If the survivor is not a survivor of a death but the survivor of a dissolution, then equally after the dissolution there is a family based on marriage, with a parent and the children of the marriage. Indeed, if the spouses marry again there can be more than one family based on marriage. What I have said about the position of the constitutional and the statutory rights of the children indicates that it does not particularly matter which definition of the family based on marriage we have; the rights of the children remain protected.

There has been a certain amount of wondering and head scratching about the family home. The family home is obviously the place where the family resides. What happens to the family home in the event of a dissolution? This is one of the areas where the provision we propose to make in relation to financial orders [1881] and property orders becomes important. On a dissolution, a typical case is that one of the parents retains the custody of the children. We have designed the amendment, and the provision we will include in legislation for the courts to make orders in relation to property, so that the court, when granting a dissolution of the marriage can, if it believes that the circumstances require it, decide to give the family home to the parent who retains custody of the children.

The court, since it has the power to make orders in relation to property, equally has the power to make an order in relation to the disposition of the family home. It is important also that I should remind the House that the court can make an order of that kind at the point of judicial separation without waiting for a divorce to come about and that the court can, as I said already, when examining an application for divorce look at what the experience has been on the basis of an order that it made at the moment of separation. It can, therefore, see whether the property order it made at the point of judicial separation did, in fact, adequately protect the interests of the dependent spouse and the children of the marriage. Among the aspects of the question it would examine would be whether or not the disposition of the family home was properly in accordance with the interests of the dependants.

There is not a great deal of point in going into a long disquisition, as I have been invited to do from time to time, on every conceivable case that could arise. We do not have to do that, particularly in relation to a Bill like this. We have courts to do that and I am quite confident that they can discharge the duties laid upon them by the Constitution in a way that will be satisfactory and will achieve the results we want to bring about.

The rest of that proviso deals with provision for dependants in a more general way. Questions have been asked about what happens in the case of a dependent spouse who during the marriage made a contribution by his or her efforts to the building up of a business, for example, or to the accumulation of property. It will [1882] be clear from what I said about the power we intend to give the courts to make financial and property orders that in a case where one of the spouses has made a contribution to building up a business the court will be able to take that into account, first of all, at the moment of judicial separation — it is important to emphasise that all the way through — and at the moment of divorce, if the case goes as far as divorce. It will be able to take account of that in deciding on the disposition of property and on making any financial order for maintenance or for alimony in relation to a spouse. The court will be in a position when it comes to making a decree of divorce of seeing how an order made in relation to separation worked out in practice. It will be able to assess the effects of the order it made.

It has been argued that perhaps we cannot be all that sure that those arrangements would last, that it might be found very quickly after the court made an order that the order was not being observed. It is important to point out that the first order the court would make in relation to property and maintenance is at the point of separation at least two years before a divorce can be applied for. It is important to point also that those provisions are made by an order of the court and the court has the power to make sure that its orders are enforced.

The question has also been raised about what is the definition of a dependent spouse or, more particularly, what is the definition of a non-dependent spouse in a case of that kind. I have been asked specifically if a non-dependent spouse might not be a spouse who is capable of going to work. I do not think that we have to pursue every detail of that argument either because we are giving the power, the duty and the obligation to the court to make decisions on those matters. The court will have to decide at the moment it is looking at either a judicial separation or, finally, a dissolution of the marriage whether or not one or other of the spouses is a dependant and, in that case, what provision to make for the spouse. If one looks at it [1883] from a commonsense point of view, as one might say, the court will not necessarily decide that a spouse who has some income is not a dependent spouse. There are spouses who could legitimately be held by a court to be dependant, who have some income but who nevertheless are dependent on the other spouse to the extent that the other spouse might, for example, be the sole registered owner of the family home or the sole registered owner of any assets there are in the family. That is a matter that would be decided by the courts. We will give, in passing this measure, guidelines to the court that will be adequate for the court to make up its mind as to what constituted a proper and adequate provision.

During the course of this debate there has been some talk about nullity. It has been suggested, for example, that perhaps instead of going as far as to provide for a divorce jurisdiction we should look at an extension of the grounds on which civil decrees of nullity are given. I must say that I have very grave reservations about that approach. We should not confuse nullity with divorce. Divorce has effect only from the time of the decree. Nullity has effect ab initio. Nullity amounts, as has been pointed out here, to a declaration that in that particular case there never was a marriage. As I pointed out, children of a marriage that ended in divorce would always remain children of that marriage under the Constitution. The allegation that has been made that they would in some way become constitutional orphans is an obvious nonsense.

But what of the children in the case of a decree of nullity? They have never been children of a marriage, by definition. They, therefore, cannot have either the constitutional or statutory rights that are granted to children of a marriage. We will remedy that situation to a degree when, as I hope we do, we pass the Status of Children Bill; but, as of now, the children in a case of nullity would, in fact, find that their situation was very substantially changed compared to what they might have thought it was when they thought [1884] their parents were married and before they found out that somebody had declared that their parents were never married.

Children of a marriage that has been the subject of a decree of nullity or that is declared void under our present law are illegitimate. They have no right of succession to their father. They have a right of succession to their mother only after the legitimate children of the mother, if there are legitimate children. I think, therefore, that it is very dangerous to suggest that because we are worried about what might happen to children in the case of divorce — those worries are groundless — we should turn elsewhere and look to an extension of the grounds of nullity for the remedy that I think most of us seem to be looking for.

I would not do that. It would put the children into an even more disadvantageous position than they are in at present. We will in the future have a discussion about possible extensions of the grounds of nullity. I am very wary about the term “updating nullity”. Nullity is nullity, whatever day it is granted. I am very reserved about that because of the effects it would have on children. I do not think it is any solution to make that problem worse. Pursuing the road of nullity would run a very grave risk of making the problem worse.

Even some of the more limited ideas that may lie behind suggestions that we should update the law of nullity or extend the grounds of nullity have a number of defects. Sometimes, it is suggested that one thing which might be done would be to extend the grounds of civil nullity so that they coincide more closely with the grounds of nullity in canon law and, in particular, with the grounds of nullity in canon law as recognised by the Catholic Church. Most of us would find on reflection that that is not a course that would offer a solution to the problem we are addressing. I will give two simple examples. There are grounds of nullity in canon law which we could not write into a statute or into the Constitution. For example, and I am open to correction on [1885] this — the correction will be available not too far away from my home but I think I am right — one of the grounds of nullity in canon law is a determination that at the moment of marriage one or both of the partners had decided not to have any children. If I am paraphrasing canon law too crudely, I beg to be forgiven. Another ground of nullity in canon law is a spiritual relationship. If it turns out that one finds one fine day that one has married one's goddaughter or godson that marriage can be declared null.

It would be very clear very quickly that neither of those grounds of nullity could possibly be included in our Constitution or provided for by statute. Therefore, there are obvious limitations and very severe limitations to the degree to which we would make civil grounds of nullity correspond to the grounds of nullity in canon law. In any case, that would be an excessively confessional approach. We would have to decide whose grounds of nullity we were going to align the State's ground with. There could be some difficulties there. None of that adds anything to the basic point that nullity is not a solution to the problems that arise in the case of a marriage which is extremely difficult and even less is it a solution to the problems that might be held to arise in the case of a separation where there were children. It would only make the situation of the children worse.

I should mention this point without dwelling on it for very long, although Senator Deenihan raised the question last night that we would make special provision to cover the cases of those who at the passing of the legislation have been separated for long periods and where it seemed to us that it would be unjustifiable to require them to go through the process of a judicial separation and then wait for two years before applying for a decree of divorce. I do not think that that has been an issue in the debate in this House but unless, I do not think it is the case, there was some close interest in it I do not intend to detain the House on the matter except to say, as I pointed out — and this is dealt with in paragraph 15 of the Government's statement of intention [1886] that it would be proper to make provision for cases where people have already been separated for a long time. This can be done without in any way derogating from or weakening the conditions are set out in the proposed constitutional amendment.

It has been suggested during the course of the debate that even if we had never decided to make a provision for dissolution of marriage we should undertake the other legislation mentioned in the statement of intention. I agree wholeheartedly with that. It is I hope a very hypothetical point to make because I hope and believe that this referendum will produce a positive result and that we will be doing all this legislation of a piece. It is worth reminding the House that the other legislation would cover such matters as legal procedures for separation, the grounds for judicial separation, the making of financial orders, the legislation regulating the further conditions of divorce, changes in the law relating to marriage by raising the minimum age for marriage to 18 except in certain exceptional circumstances. I gather from the fact that that has not figured much in the debate that the House is generally in agreement with it. There is a requirement for three months notice of marriage which again from the fact that it has not figured in the debate I conclude the House is broadly in agreement with.

Senator Rogers in dealing with the evolution of thinking on the matter of divorce made what I believe to be one of the central points in this discussion. She said, and I do not think I am misquoting her, that what we are looking at here and what has evolved in this proposal is the law reflecting rather than influencing social custom. There is a remarkable insight in that statement, if I may say so. I would invite Members of this House and elsewhere who draw parallels between the experience of other countries where there is divorce legislation to go back and re-think and re-examine the lessons they think they draw from that in the light of that simple statement. There is at least a reasonable chance if they approach it with an open mind that they will find that that has normally been what [1887] has happened in other jurisdictions. It is that divorce law has changed following changes in social customs. I will come back to that point at the end of my remarks.

There is one small point I want to make since it came close to Senator Rogers's contribution. It was a point which Senator Hillery made about custody battles. I think he quoted from the back page of today's Irish Independent rather than the editorial page which he mentioned very briefly but did not quote from for some reason.

Professor Hillery:On a point of clarification, it was an extract from the Irish Independent of approximately one month ago, as the record will show.

Mr. Dukes:That is probably the reason the Senator overlooked the editorial in today's Irish Independent. Indeed, I would have to agree with the Senator because the prospects are horrifying in many ways. It is not relevant to the debate, however, because so long as we have marriages breaking down or separations of any kind there will be custody battles. The fact that there are such battles when parents separate is not an argument for or against legislating to permits the dissolution of marriage. The only way to avoid custody battles is to avoid the situations that cause them, and the only way to avoid that is to stop marriages breaking down. We have not found a way to do that and I do not think we will ever be in a position in the Oireachtas or any other Legislature to pass laws to prevent marriages from breaking down.

There are many other points of detail that I would like to make in regard to the matters we have discussed but I will limit myself to a small number. This is not a threat, because I would happily go on at considerable length——

Mr. O'Leary:The Minister may not consider it a threat, but we do.

Mr. Lanigan:Happily? I would enjoy the Minister if he went along happily.

[1888]Mr. Dukes:I intend to do it for the next four weeks, not the next four hours. In relation to the rights of children on a dissolution of marriage, in certain circumstances we are giving such children a new constitutional right that does not now exist. That is an important consideration. By the proviso in the Schedule we are giving divorced dependent spouses a new constitutional right that they do not have now. There has been some argument — I think I have shown it is without foundation — about the effects of this on the succession rights of children on dissolution of marriage. I hope the House will have concluded that such children will not be affected adversely. Another slightly different argument is that in the event of marriage dissolution, if one or other of the parents should remarry there is potential for the succession rights of the children of the first marriage to be diluted because there is the possibility of another family. What many Senators seem to overlook is that at the time of dissolution, by definition there cannot be another family of a marriage that would have the rights we talk about here, but in any case it is quite clear that if there are more children with rights to the estate, in principle there is less for each child.

That is not an unambiguous argument against dissolution of marriage. Take a case of parents in a dissolution who do not remarry. The children gain in that case because there is a spouse who has lost succession rights so there is more in the pool for the children. It can be argued that that kind of decision a court would make on dissolution would re-adjust that back and then no difference would occur in regard to the actual succession expectations of the children. But what happens in cases where marriages discontinue? I could argue that the succession rights of my two daughters could be more or less forecast — it would not take too much work to do it because there would not be a great deal to leave them — but theoretically you could——

Mr. Lanigan:You can buy a new car in Europe cheaper than here.

[1889]Mr. Dukes:That car is now off the road. I am glad to be able to tell the Senator that I have a six months old car that I bought from a good friend of the Senator and mine in Kildare town at a very attractive price. It does not arise on the Schedule.

Mr. Lanigan:I am delighted your colleague has taken over your job — he has not bought a car in a long time.

Mr. Dukes:Theoretically you could argue that succession rights could be determined now in relation to my children. As I said in another place, if they were old enough and sharp enough — they are sharp enough but not yet old enough — they could say to me: “Listen, Dad, you do not have any more children because you will be diluting our succession rights”. Dissolution of marriage of itself does not make any difference at all to succession rights. I was quoting a good friend and colleague of mine when I said to a friend earlier this evening that in the event of succession the worst enemy of any child is the next child, whether the parents stay married or have a dissolution. Therefore, the argument about the potential dilution of succession rights is not in any way real against the dissolution of marriage because succession rights can be “diluted” for a whole range of different reasons that have nothing to do with the children.

There has been a great deal of discussion about the result of a dissolution in low income families, about what would happen to various social welfare rights in the event of a dissolution. During the discussion it seemed to me that a suggestion was being made that a marriage dissolution would inevitably involve social welfare payments. That is not the case. We should not forget that, no matter what level of income or property the spouses had at dissolution, the dissolution would give rise to difficulty, and the entrance into the picture of another person or persons with any rights or in relation to whom one of the owners of the property would have any direct financial obligations will change the situation. It [1890] would have to make a difference if a person has to try to maintain out of a given income two groups of people, spouses, children or whatever, rather than one. Again, that has nothing, necessarily, to do with dissolution of marriage because, as Senator Robinson said, some of these real problems arise now anyway and they have to be dealt with. The provisions in this Bill and subsequent legislation will give us a more humane way of dealing with them.

In relation to the difficulties on the social welfare side, however, I have to make the point that it is the Government's intention to ensure that no person will lose in relation to the provision the State makes for that person as a result of a change of status from married or separated to divorced. That is not likely to be as great a difficulty as many people seem to think. In fact, there are both gains and losses that one can expect in relation to situations of that kind. We have to be more specific about it.

There are numbers of people today in receipt of deserted wife's benefit or deserted wife's allowance. Think of the situation of a person in receipt of allowance or benefit under that heading who, under the provisions we have here, finally obtains a divorce and remarries. To put it quite coldly, there is a saving to the State in that regard if she marries a person who can support her. Equally, if there is a case where what the court regards as adequate and proper provision cannot be made without recourse to the social welfare provision of the State there would be a cost. However, it is not by any means to be concluded that there would always be a net extra cost to the State. To pretend that is the case is to distort the argument in a way that is not all justified either by the situation of persons already separated or by the expectation as to who are the people in Irish society who would become separated and then divorced under the provisions set out here.

Earlier this evening the suggestion was made that the Government should have sat down with the various Churches in order to work out perhaps a different [1891] approach to the problems we are speaking about now. We have sat down with the various Churches to discuss the matters that are set out in the statement of intention and, indeed, in the Bill. We had a very constructive and useful discussion on a number of the issues and it would, perhaps, be worthwhile to point out to the House some of the results of that discussion and other reflections.

The Irish Episcopal Conference recommended that the minimum age of marriage should be 18 years and that marriages of persons between 16 and 18 years of age should be permitted with the consent of their guardians and of a court which would have to be satisfied that the marriage would in the circumstances be in the best interests of both parties. In addition to that, the conference felt that a waiting period of three months should be introduced in order to ensure adequate preparation for marriage. As I pointed out, it is our intention to introduce legislation along those lines.

The Irish Episcopal Conference also suggested that the State should recognise bodies providing counselling services and should assist them financially. It endorsed the establishment of special family tribunals which would deal with all aspects of marriage. As I pointed out in the brief illustration I gave of the changes we intend to make in the legislation and the procedures in relation to separation, we have adopted measures very similar to those suggested by the Episcopal Conference. We are providing for the setting up of family courts and we are also providing that that court should be able to adjourn proceedings so that people seeking judicial separation could use the services available to see if a reconciliation could be brought about.

The conference also said that when considering an application for legal separation a court should be empowered to make awards for the maintenance of either of the spouses and also of the children and to make orders as to the disposition, ownership or use of the property. It also suggested that the grounds for granting legal separation should be [1892] extended to include desertion, including constructive desertion. On those points there has been a meeting of minds; we are moving in the same direction. I do not wish to overstate this but, to a large extent, in the accompanying measures we are proposing we are going along a path which I think is one which has been defined by a consensus of most of the interests who have been looking at the problem we are dealing with here.

The debate centres around two conflicting propositions. One the one hand there is the proposition that not only is divorce wrong and bad in principle but that any provision for divorce, however limited, will mean the begining of the end of marriage and family life as we know it and that any limitations or obstacles to quick and easy divorce will quickly disappear. The other proposition is that society here has changed over the last 20 years or so, that attitudes towards marriage and personal fulfilment as well as attitudes between the sexes have so altered that the time may now have come for the law to change so as to accommodate itself to those changes in society. As I pointed out earlier, I believe that what we see is a process of the law catching up with social change rather than the other way around. The Government, clearly, take the view — and I think that point of view is shared by most of those who spoke on this side of the House — but that does not mean that the Government are actively in favour of or approve of divorce. That is not the case. It indicates that faced with a choice the Government come down in favour of realism that takes account of human factors rather than fundamentalism which does not. We believe it is necessary that the law should remain in touch with life; it must, to a degree, reflect life even while it regulates it.

I have already spoken about the lessons that can be drawn from the history of divorce legislation in other jurisdictions. I am not sure that the lessons that are drawn by those who are very reserved about it are necessarily accurate or proper in the context of those other jurisdictions or that they are particularly relevant here. I do not say that because I [1893] believe that in some mysterious way we are better or more resistant people than others.

There is another difference and it is reflected in this Bill. We are talking about changing a provision in the Constitution in order to allow for the dissolution of marriage but only on the basis of what we permit in the Constitution. I am not aware of any other jurisdiction where that type of limitation is put on legislation. As I have said before, no legislation governing divorce or any conditions surrounding it can be more restrictive than the provision we make in our Constitution, a condition which is peculiar to us. It arises directly from the fact that we have a detailed Constitution and obviously that will continue to be the case. No relaxation of the conditions we have provided could be brought about without another proposal to amend the Constitution being debated in the Oireachtas.

Senator Lanigan and others referred the fact that if we pass this measure — I hope we do — it would bring about a change in the attitudes of many people to marriage. Senator Lanigan suggested there might be the possibility that people would take a different approach to marriage. People who might otherwise hesitate about entering into marriage might take the view: we will go ahead with this because if it does not work out there a way out of it. I do not think they should take that view. Who, for example, would deliberately run the risk of going through five years of a failed marriage? A friend of mine in the other House has a favourite phrase. When he feels we are doing something the wrong way he says: “I am not going to go through Hell just for practice”. That approach has some relevance here. Can you imagine a young couple at the beginning of their life contemplating marriage, looking at this provision and wondering if they should get married and then saying: “Well, if it does not work out, after a period of time, we can decide that the marriage has failed, go to court and apply for a legal separation. Having done that we will wait for two years and apply for a divorce and again go before [1894] the courts and show that the marriage has failed”?

Mr. Lanigan:It is a matter of attitude.

Acting Chairman (Mr. Daly):The Minister without interruption.

Mr. Dukes:It is not simply a matter of attitude.

Mr. Lanigan:Yes, it is.

Mr. Dukes:I find it upsetting — I will not be rude to Senator Lanigan — that a man with far more experience in politics and life than I have takes the view that this is simply a matter of attitude and that people do not consider these matters before they get involved. I hope that, as a result of the debate we have had here and the debate that will continue over the next four weeks, people will not say when they go to vote on this issue: “Am I for or against divorce? It seems like a good idea, so I will vote yes or it seems like a bad idea so I will vote no.” I hope people will have thought about the issues.

Mr. Lanigan:It is not just as simple as that.

Mr. Dukes:I hope that because we have had this debate and have talked about the difficulties that are inherent in any marriage and because we have talked about the need to make a humane and just provision for people who have got into difficulties, couples will conclude, that they should not go into marriage lightly. One does not put life rafts on a ship if one does not believe there is at least a prospect or possibility that it might hit a rock and sink.

Mr. Lanigan:I agree with the Minister but——

Acting Chairman:The Minister should be allowed to continue.

Mr. Dukes:If we have a public debate over the next four weeks I hope it will help people to realise that marriage is a [1895] substantial undertaking and that because it is, we should provide some means of help for those involved if the marriage fails.

I hope Senator de Brún will forgive me for not going into detail on the points he has made about the Schedule but we will have an opportunity to discuss that in detail tomorrow on Committee Stage.

I apologise for having kept the House rather late this evening although some of us expected to be here for a little longer. I conclude by thanking the House for the thoroughness of the debate. I thank those who support the view which I defend, which is that we should pass this measure. I ask those who do not agree, or who do not yet agree to consider the issue. Is there any other area of human endeavour — Senator Lanigan said marriage requires a good deal of work — where we say that, once you have embarked on that course, you may not deviate from it? It is often said that in politics you should never say “never”. If that is true in politics, it must be true of one of the few callings that are even higher than politics.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Acting Chairman:When is it proposed to take the next stage?

Mr. Ferris:It is proposed to take the [1896] next stage tomorrow morning at 10 o'clock. We have taken the liberty of circulating the amendments to the Members of the House so that they will have an opportunity to examine them overnight. In view of the lengthy and appropriate amount of time we have given to the Second Stage — over 24 hours — I hope Members will have an opportunity overnight to consult with their colleagues and with their consciences about the amendment. We will resume in the morning at 10 o'clock.

Mr. Lanigan:Checking with our colleagues and consciences overnight is something we all agree with. Is it intended tomorrow just to take the Committee Stage of this Bill or are we taking any other legislation?

Mr. Ferris:It is proposed to take item No. 2 which was ordered today, the Electoral (Amentment) Bill. It is linked to this Bill. It is simple and I hope we will be able to finish that immediately after we conclude this debate.

Ordaíodh Céim an Choiste don Satharn, 24 Bealtaine 1986.

Committee Stage ordered for Saturday, 24 May 1986.

The Seanad adjourned at 10.40 p.m. until 10 a.m. on Saturday, 24 May 1986.